The Constitution empowers the president to "nominate, and by and with the advice and consent of the Senate, . . . 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 . . . ." U.S. Const. Art. II, sec. 2. The Constitution's Appointments Clause also provides that "the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." Thus, the Constitution creates two classes of officers, i.e., principal and inferior. Although the line between these two classes is unclear, there is no doubt that the office of the attorney general is a principal office. And the founders had very good reasons for requiring that principal officers be nominated by and with the advice and consent of the Senate.
In arguing in favor of the Appointments Clause, Hamilton recognized three ways for appointing principal officers. This power could "be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly." Federalist No. 76 The drafters of the Constitution were concerned about the danger of placing the power to appoint principal officers of the government in the hands of one person. Alexander Hamilton explained this in Federalist No. 76:
To what purpose then require the co-operation of the Senate? I answer, that the
necessity of their concurrence would have a powerful, though, in general, a
silent operation. It 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.
It will readily be comprehended, that a man who had himself the sole disposition
of offices, would be governed much more by his private inclinations and interests,
than when he was bound to submit the propriety of his choice to the discussion
and determination of a different and independent body, and that body an entire
branch of the legislature. The possibility of rejection would be a strong motive to
care in proposing. The danger to his own reputation, and, in the case of an
elective magistrate, to his political existence, from betraying a spirit of favoritism,
or an unbecoming pursuit of popularity, to the observation of a body whose
opinion would have great weight in forming that of the public, could not fail to
operate as a barrier to the one and to the other. He would be both ashamed and
afraid to bring forward, for the most distinguished or lucrative stations, candidates
who had no other merit than that of coming from the same State to which he
particularly belonged, or of being in some way or other personally allied to him,
or of possessing the necessary insignificance and pliancy to render them the
obsequious instruments of his pleasure.
The back-and-forth as to whether the president could appoint Whitaker has included discussion of the Federal Vacancies Reform Act . The Act allows the president to "direct an officer of employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity . . . ." 5 U.S.C. § 3345(a)(3). The Federal Vacancies Reform Act is an attempt to allow the president to avoid the Appointments Clause. In Justice Thomas's concurring opinion in NLRA v. SW General, Inc. he argued that in an appropriate case, the Court should find this Act to be unconstitutional. Justice Thomas's view is based on the language of the Appointments Clause. This Act encourages the very thing that concerned the drafters, i.e., "the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” NLRA v. SW General, Inc. (Thomas J., concurring). Presidents will always seek to increase executive power in the face of a weak or lazy Congress.
Some will argue that even the First Congress allowed the president to make temporary appointments. This is true, but that doesn't make it constitutional. For example, Congress passed the Alien and Sedition Acts during John Adams's administration, but this was no less unconstitutional merely because those present or alive at the drafting of the Constitution approved it.
Trump should seek the advice of those who can instruct him in the constitutional requirements for appointing the attorney general. The Constitution is not a set of suggestions to be followed or ignored as convenience dictates.
No comments:
Post a Comment