Because Senate Democrats eliminated the filibuster for executive-branch appointments, President-elect Trump’s nominees should have relatively smooth sailing in their confirmations.
The (not yet official) nomination of General James Mattis to be secretary of defense is the lone exception, and some Democrats quickly realized their opportunity to throw sand in the gears.
Because of legislation adopted in 1947 (and more recently amended), General James Mattis is not currently qualified under federal law to serve as secretary of defense.
Congress has provided that a “person may not be appointed as Secretary of Defense within seven years after relief from active duty as a commissioned officer of a regular component of an armed force.” To conform to this statutory ban, Congress will have to enact new legislation to exempt General Mattis from the seven-year rule, as it did in 1950 with General George Marshall.
Both houses of Congress will have to vote to exempt Mattis from the statutory ban and present that legislation to President Trump for his signature. This legislative exemption could be subject to a Senate filibuster.
That seems highly unlikely — or at least extremely risky for a nominee of his stature.
But that hasn’t stopped some on the left from calling for the Senate to filibuster the nomination after New York senator Kirsten Gillibrand indicated her opposition to the special legislation.
It does not appear this movement has much traction, but it does raise the interesting issue of whether a special legislative exemption is even necessary here.
As I pointed out in my original post on this topic, the statutory ban on former military personnel serving as secretary of defense for some period after active duty is almost certainly unconstitutional.
That post was limited to discussing the constitutional text. Quite frankly, a full discussion of the topic would make for a law-review article.
Since the original post, I’ve seen some criticism from some conservatives whom I respect (especially my dear friend Andy McCarthy — whose most recent post was published just before I filed this piece, so I don’t fully engage his arguments here but have anticipated many of them) about my suggestion that the Constitution prohibits Congress from placing limits on the people that the president can nominate and appoint to serve as principal officers in the executive branch.
But I don’t find the criticism convincing and expand a bit here on the issue.
The relative powers of the president and Congress with respect to appointments are set forth in Article II of the Constitution:
“The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . . . ”
As I explained in my original post, this should be the end of it.
The president’s power to nominate and appoint officers of the United States is exclusive.
The only legislative check on that authority is the Senate’s role in advice and consent. That gives significant power to the Senate, since it can reject the president’s choice.
But this does not give the Congress power to set the qualifications for the offices to which the president appoints.
It has not yet been set to hip-hop, but Alexander Hamilton wrote extensively about the relative roles of the president and Senate in the appointment process in the Federalist Papers.
In Federalist No. 76., he rejected the notion that the choice of a nominee should be left to committee, arguing instead that it should be vested in the chief executive:
“I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.”
All of the advantage of an individual’s discerning judgment will be sufficiently protected by the exclusive presidential power to nominate:
“In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment.”
So why have any legislative role in the appointment process? Why not leave it all to the president’s sole discretion?
Hamilton answers that the necessity of Senate concurrence
“would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.”
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