When Trump exercised presidential power, he could not even built its border wall. But next time, feverish forecasters warn, the entire federal apparatus, which essentially hates him, will suddenly appear submissive. Such alarmism, which obviously gives some people pleasant chills, distracts from the similarity in Trump and Biden’s disregard for legality.
Instances of Trump’s unconstitutional behavior have been widely reported and deplored. Biden’s, less so – even if they (for example, the moratorium on evictions, the vaccination mandateTHE cancellation of student debt), and legal reprimands against them were frequent. Now consider the lack of attention paid to his contempt for the Federal Vacancy Reform Actand the passive complicity of the senatorial majority.
The president has the plenary power to appoint principal officials of the federal government without seeking prior advice from the Senate. The Senate has plenary power to confirm – or reject – nominees, and it can to some extent condition the president’s power by stipulating certain qualifications for particular offices.
Biden nominated Ann Carlson last March, to become administrator of the National Highway Traffic Safety Administration. Two months later, when it was clear the Senate would not confirm her, Biden withdrew the nomination. But less than five weeks later, he named Carlson acting administrator. His impertinence would perhaps be limited, by the law on vacant positions, at 210 dayswhich would expire December 26. Furthermore, the The Supreme Court ruled that the law prohibits “any person who has been appointed to fill a vacant position from performing the duties of that position in an acting capacity.”
Biden, whose indifference to these legalities is Trumpian, is also unimpressed by several other provisions of the law that redundantly disqualify Carlson. In a masterpiece of understatement, Senator Ted Cruz (R-Texas) states: “It would indeed be strange if the law prohibited someone from acting as an interim while their appointment is pending, but allows him to act as a temporary worker. After their application was withdrawn.
In September, Cruz proposed an amendment to an appropriations bill that would have eliminated funding for Carlson by barring anyone appointed and who did not obtain Senate approval for a position from being paid to hold that position . The Senate rejected the amendment 49-47, with only one Democrat (Joe Manchin III of West Virginia, of course) supporting him.
In Federalist 51, James Madison predicted that liberty would be protected because the separation of powers would give “those who administer each department the constitutional means and personal motives necessary to resist the encroachment of others.” Unfortunately, Madison’s hope that one branch’s ambition would “thwart” the other assumed that, for example, the Senate’s pride would make it jealous of its prerogatives of advice and consent – or refusal. of consent – concerning individuals appointed by presidents to positions within the executive branch.
The Madisonian architecture of the Constitution – the constitutional balance of the federal government – has been imperiled by political tribalism. By loyalty to the party which breeds submission to the president and disloyalty to the Senate as an institution.
Such behavior is not new. Presidents acting as if their preferences trump the provisions of the law predate the constitutional vandalisms of Biden and Trump. For example, In 1997, President Bill Clinton said“I have done my best to work with the United States Senate in a fully constitutional manner. But but. Because the Senate failed to confirm his nomination to head the Justice Department’s Civil Rights Division, Clinton appointed – completely unconstitutionally – “acting” Bill Lann Lee to serve as deputy attorney general for life. The Senate acquiesced in this erasure of a central power to the system of checks and balances.
History of Judge Josephwho served at the Supreme Court from 1812 to 1845, declared that “no serious abuse of power can take place without the cooperation of two coordinated branches of government.” Today, a Democratic executive and a Democratic-controlled Senate have cooperated to abuse power while histrionically warning of future authoritarian illegalities.
Perhaps because of the the ruckus that Cruz raised drawing attention to Carlson, and although Senate Democrats rejected his proposal to fund it, she abandoned his post on December 26. The contentment over this small victory of constitutional expediency, however, should be tempered by sorrow that expediency and legality (read the Supreme Court’s words in paragraph five above) have become contested concepts.
