That Pesky Constitution

  Nikolas Bowie at Take Care

In its first fifty days, the Trump administration has done a magnificent job—the best job—teaching Americans about the Constitution. Who among us could distinguish an emolument from a peppermint before 2016? In that spirit, as we learn more about the employees President Trump has hired to run the executive branch, it’s worth asking whether his administration is violating another under-the-radar provision: The Appointments Clause.

The Appointments Clause is the one that requires the president to get the “Advice and Consent of the Senate” before he can hire certain “Officers of the United States.” It’s the reason we know what Betsy DeVos thinks about bears or that the Russian ambassador is easily forgettable. The eighteenth-century authors of the clause anticipated that no president could run the executive branch by himself, but they wanted a “check” to ensure that he didn’t appoint “unfit characters,” “family connection[s],” or “obsequious instruments of his pleasure.” They decided that Senate debates on the merits of nominees would provide much-needed accountability for the most important members of a president’s team.

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Over the years, these “assistants to the president” have grown in number and in status to take on some of the most important advisory responsibilities in the White House. But even though these assistants now wield tremendous informal clout, they have always remained “employees” for constitutional purposes. And every president since Roosevelt has generally adhered to the Appointments Clause by restraining their employees from exceeding the constitutional limits on their statutory authority.

Until now.

When President Trump issued his first travel ban, for instance, employees Bannon and Miller interposed themselves between the president and the Department of Homeland Security by overruling its interpretation of whether the ban applied to green-card holders. That weekend, employee Miller reportedly called a Senate-confirmed U.S. Attorney to dictate how he should defend the ban in court. In addition, employee Miller also “effectively ran” a meeting of the National Security Council despite Congress’s requirement that the council “shall be composed” only of people “appointed by the President by and with the advice and consent of the Senate.”

More recently, employee McGhan has given “authoritative guidance” to Senate-confirmed officers in the Department of Homeland Security about how to interpret President Trump’s inscrutable executive orders. He’s also the employee responsible for directing Senate-confirmed officers in the Department of Justice to turn over any warrants regarding the president’s wild accusations that he was wiretapped.

Employee Preibus reportedly directed the Senate-confirmed FBI director to “knock down” stories that the Trump campaign had colluded with Russia.

And the president has appointed at least one of his 400 “beachhead” employees, Stephen Vaughn, to serve in a Senate-confirmable position as acting U.S. Trade Representative, even though federal law expressly prohibits that sort of appointment.

Notice a pattern?

hat tip = Lawrence Tribe @tribelaw

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