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.
The clause lays out different hiring procedures depending on a nominee’s supervisor and job description.
Principal “Officers”—people who report directly to the president and who exercise significant authority over departments and agencies—require Senate confirmation. Hence Betsy DeVos’s recent grilling on C-SPAN2.
“[I]nferior Officers”—the deputies and assistants and deputy assistants who are directed and supervised by one of these principals—can be appointed with or without the Senate’s consent, depending on what Congress “think[s] proper.”
Finally, there are the millions of postal workers, federal agents, and other civil servants not mentioned by the Appointments Clause. The Supreme Court has called these people “employees.” To prevent a president from evading the clause’s protections, it has defined employees as “lesser functionaries subordinate to officers.” Crucially, this implies that an employee may not direct or supervise an officer.
President Trump has already hired lots of employees—over 400—throughout the executive branch. The most important are the 30 or so “assistants to the president,” a title that includes chief of staff Reince Preibus, White House counsel Don McGahn, and the two Steves, Bannon and Miller. They were appointed under a pretty broad statute that allows the president “to appoint . . . employees” to perform “such official duties as the president may prescribe.” And as we have just gone over, the Appointments Clause provides a limit to these official duties: they can’t include directing or supervising Senate-confirmable officers or else these direct reports to the president would themselves be principal officers subject to Senate confirmation.
This limit on the assistants’ power is clear from the statute’s history. When newly elected president Franklin D. Roosevelt wanted to hire his “brain trust” of close advisors, he had to appoint them as Senate-confirmable officers across the administration. In 1939, Congress gave the president a break by allowing him to hire six “administrative assistants.” To assure Congress that these assistants would never require Senate confirmation, President Roosevelt explained that they “shall have no authority over anyone in any department or agency” and in no event “shall the Administrative Assistants be interposed between the President and the head of any department or agency.”
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.
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?
To put a name to a face, I think some of the Trump administration’s employees are exceeding the Appointment Clause’s limit on Congress's grant of authority. The purpose of the clause is to ensure that the people who exercise significant authority on behalf of the president are first vetted in full view of the American public. But President Trump’s employees appear to be exercising the same authority informally and without Senate confirmation. At the very least, their requests straddle the line between informal clout and formal command in a way that suggests the Trump administration lacks due regard for the constitutional and statutory limits on its employees’ official duties.
I’ll admit that it’s difficult to distinguish between an employee’s take-it-or-leave-it advice, which the Appointments Clause tolerates, and the sort of direction and supervision that the clause prohibits. Thousands of White House employees over the years have offered suggestions to officers without also directing or supervising them. And it’s especially hard to make this distinction as an outsider relying on secondhand reports. Perhaps the officers listening to the Trump White House all recognized that his employees lacked the legal authority to command anything—which may be why at least some of the officers haven’t complied with them.
But some of the officers have complied with employees’ directives, as when the Department of Homeland Security stopped letting in green-card holders because of the order by employees Bannon and Miller. To the extent the Trump administration’s employees are directing officers what to do, it shouldn’t matter that an omniscient lawyer would interpret their commands as mere suggestions. After all, just because a public official lacks the authority to order something doesn’t turn all of his or her directives into consensual requests.
(I also consider it semantic whether to call the employee directives a violation of the Appointments Clause or a violation of the “assistants to the president” statute. To see why, imagine a different statute, one that authorized the president to exclude anyone from the United States. Imagine there were also a constitutional provision that prohibited the president from excluding green-card holders. If the president issued an order excluding green-card holders, would you say he violated the Constitution or exceeded his authority under the statute? I don't think the answer really matters, although my guess is you’d say the Constitution.)
The Appointments Clause is the constitutional check on corrupt and secret presidential administration. Just as the clause prohibits the president from appointing an unconfirmed employee to direct an executive department, it also prohibits that same employee from leveraging his or her closeness to the president to direct the department’s activities. So either the president should reduce his employees’ responsibilities or Congress should convert them into officers and make them show their faces before the Senate. The Constitution, and C-SPAN2, demand it.