Framers established requirements for Senate advice and consent on presidential nominations to protect democracy from “tyrannical” presidents. As the Supreme Court explained, Freitag v. Commissioner of Internal Revenuethe “power to appoint officers” was “the most insidious weapon of eighteenth-century despotism.”
Justice Antonin Scalia echoed this theme. NLRB vs. Noel Canning; Major (and unanimously decided) cases involving appointments made while Congress was in recess. Former Justice David Souter similarly pointed out that the Senate's power to disapprove nominees limits the president's “misconduct” by checking his “arbitrary power.” Weiss v. United States.
inNLRB vs. Southwest GeneralJustice Clarence Thomas cited “the serious risks of abuse and corruption that arise from allowing one person to hold every office in government.” He explained that the framers of the Constitution “were living under a form of government” that did not check the arbitrary exercise of executive power. They recognized that “freedom can only be maintained by ensuring that the power of government is never consolidated into one organization.”
But House Speaker Mike Johnson (R-Louisiana) suggested the Senate should give up that important check and allow “the president to fill his Cabinet with people of his own choosing.” However, the framers of the Constitution rejected proposals that would have allowed the president to unilaterally appoint Cabinet members on the grounds that it might be necessary from time to time to prevent the president from appointing unsuitable candidates. .
alexander hamilton explained The Federalist Papers describe how “despotism” is prevented by denying the president the power to make unilateral appointments. This is done by blocking the appointment of directors with “compliance” and is a “coercive measure”. [the president’s] joy. “
The reason is obvious. Officers who persistently follow the president's orders may follow illegal orders or use their authority to support the president's allies or persecute political opponents.
Johnson went on to justify his request for the Senate to waive its constitutional duties by citing the need to carry out the president's policies. When it was first established, the president did not even campaign, let alone clarify his policies. They were intended to serve as the “supreme judges” of the republic and faithfully enforce the laws passed by Congress.
Of course, the president now proposes the policy agenda. However, in a constitutional democracy, these campaign promises primarily consist of proposals to parliament, which has the power to formulate new policies. Allowing the president to appoint fanatics to carry out his policy agenda without amending the law would establish a dictatorship.
The Constitution contains many mechanisms to prevent arbitrary power and maintain the rule of law, further emphasizing the importance of the Senate's vigorous vetting of presidential candidates. The constitution broke with the monarchical tradition of requiring government officials to swear allegiance to the head of state. Our Constitution requires loyalty to the law, not the president. This requires all government officials, including the president, to take an oath to abide by the Constitution.
The oath requires the president to disobey an executive order if the president is ordered to disobey the law or abuse his authority to harass an innocent person, business, or nation. Allowing the appointment of officers who cannot be expected to obey unconstitutional orders would destroy the Framers' plan for preserving democracy.
If the Senate objects to Trump's appointments, Johnson may be well placed to adjourn the Senate and allow Trump to unilaterally assume executive-appointing powers that the Constitution's framers explicitly denied. he suggested.
The Constitution includes a recess appointments clause that allows for unilateral appointments while the Senate is in recess. However, as the Supreme Court pointed out in Noel Canning,, This provision was not intended to allow the president to circumvent the advice and consent requirement.
Instead, framers (back in the days when Congress was often in recess and travel time was much longer) realized that key positions could become vacant when the Senate was unable to confirm a suitable candidate. I recognized it. This procedure was introduced as an emergency measure in case a minister resigns or becomes unwell during the recess. The framers never intended for recess appointments to serve as a means for autocratic presidents to bypass Senate confirmation and establish a dictatorial regime.
Thankfully, Mr. Johnson is not a senator. The Framers never imagined the Senate to be a pawn of populist agitation. Instead, the Senate was to be made up of politicians who could command respect throughout the state. Their enlarged views would enable them to exercise restraint and deliberation rather than following popular passions (which was the case for the House of Commons).
Never before has the security of the republic depended so clearly on the exercise of these virtues.
David M. Driesen is a university professor at Syracuse University and author of The Specter of Dictatorship: Judicial Enabling of Presidential Power (Stanford University Press, 2021).
