As the first months of the Trump Administration have unfolded, one topic that’s received a fair amount of attention is the President’s nominations to head Cabinet agencies.  One topic that’s received far less attention is who he’s nominating to help those agency heads, and with good reason—so far, Trump largely hasn’t nominated people to fill the hundreds of important agency positions that require Senate confirmation. 

But a new ProPublica story suggests that even as Trump hasn’t been nominating individuals to fill these Senate-confirmed positions, he has been installing hundreds of officials throughout the federal agencies to guide the work they’re doing.  And there’s potentially a big problem with that: if this backdoor practice continues, it could undermine the Senate’s important role in providing advice and consent to the appointment of individuals who help lead federal agencies.  (Writing for this site, Niko Bowie has raised similar concerns about White House employees; here, my focus is on Trump’s unconfirmed employees scattered throughout the federal agencies.)

When the Framers drafted our enduring Constitution, their design sharply departed from the precursor Articles of Confederation in its creation of a strong Executive Branch headed by a single President. Under the Constitution, this new President would have sole responsibility for executing the nation’s laws, but he would be aided in that constitutional obligation by subordinate officers.  As the Framers recognized, “[t]he ingredients which constitute energy in the Executive are . . . an adequate provision for its support.”  Indeed, the Supreme Court too has recognized that “the President, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates.”

Thus, the Framers included in the Constitution the Appointments Clause, which provides that 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.” 

While the Framers gave the President the authority to choose his subordinates, they also gave the Senate an important role to play, requiring Senate advice and confirmation for the appointment of high-level officials.  The Framers believed that the Senate’s advice-and-consent function would make the President “more circumspect, and deliberate in his nominations for office.”  As Alexander Hamilton put it, “The possibility of rejection would be a strong motive to care in proposing.”

When most people think of presidential nominations to executive branch positions, they think of Cabinet secretaries—the heads of the federal agencies—but those agency heads cannot possibly oversee every single action taking place in their departments.  And that is why every department has a number of other high-level positions that are potentially quite powerful—and require Senate confirmation. 

In the Department of Justice, for example, there are 27 different Senate-confirmed positions, including the head of the National Security Division, the head of the Civil Division, the head of the Criminal Division, and the head of the Civil Rights Division.  In the Department of State, there are 119 Senate-confirmed positions, including the Assistant Secretary for Intelligence and Research, the Under Secretary for Public Diplomacy, and the Coordinator for Counter-terrorism. 

All told, there are more than 500 executive branch positions that cannot be filled until the Senate provides its advice and consent.  President Trump has nominated fewer than 50 people to fill them.

When asked recently about his failure to name people to fill these positions, the President suggested that he may choose never to fill them.  As he explained: “A lot of those jobs, I don’t want to appoint, because they’re unnecessary to have.  You know, we have so many people in government, even me.  I look at some of the jobs and it’s people over people over people.  I say, ‘What do all these people do?’ You don’t need all those jobs.’”

Yet the ProPublica article suggests that might not be all there is to the story: according to ProPublica, “While President Trump has not moved to fill many jobs that require Senate confirmation, he has quietly installed hundreds of officials to serve as his eyes and ears at every major federal agency, from the Pentagon to the Department of Interior.”  In fact, “The White House said in January that around 520 staffers were being hired for” this purpose.

This presents the possibility that Trump may want people in place to help shape policy at the federal agencies (as is his right), but that he may be trying to bring this about without ensuring that the Senate scrutinizes and consents to the appointment of people who are shaping that policy (which is definitely not his right). 

That possibility is alarming.  Indeed, during the late 1990s, Congress was so disturbed by the possibility that President Clinton was violating the Appointments Clause that it amended the law that empowers the President to temporarily fill vacancies in senior executive branch positions.  Specifically, Congress prevented the President from circumventing the Senate’s advice-and-consent role by nominating someone from outside government to fill a vacancy permanently and, at the same time, allowing that person to immediately begin performing the duties of the office in an acting capacity.  (The scope of that amendment to the law is actually the subject of a case that is currently pending at the Supreme Court.)  At the time, Senator Fred Thompson observed that “one of the Senate’s most important powers” is the “duty to advise and consent on presidential nominees.”

That’s no less true now than it was then, which is why everyone should be paying attention not only to whom Trump is putting in charge of running our federal agencies, but also how he’s doing it.

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