//  4/4/17  //  Commentary

The Trump administration’s transition is hardly the first to be slow, scandal-ridden, or anti-regulatory.  The thickness of the political layer at the top of American government combines with partisanship in the Senate virtually to guarantee that a new administration will not be fully formed for months after inauguration.  (I speak from experience: as General Counsel of the Nuclear Regulatory Commission in 1977, and despite repeated signals to the new administration of Jimmy Carter (a nuclear engineer), I had to prepare the Commission for losing its quorum.  The regulator of nuclear power plants could not act as a commission between July 1 and October of that year, when a new commissioner was finally confirmed.)  “Nannygate” cost Bill Clinton his first choice to be Attorney General.  And the appointment of Scott Pruitt to head the EPA, a committed opponent of the policies he inherited, echoed Ronald Reagan’s appointment to that position of Anne Gorsuch, whose son seems likely to be our new Supreme Court Justice. 

The Pruitt appointment, one could at least say, reflects the promises of the incoming administration, no surprise and an appropriate outcome of America’s political choice of President.  But the first two examples illustrate the stark contrast between government formation here and in parliamentary democracies, where the political leadership of government assumes office immediately upon the accession to office of a new prime minister.

Perhaps reflecting his commitment to deconstruct the administrative state, President Trump has been the slowest President in decades to send to the Senate his choices for sub-cabinet positions.  On April 2, the New York Times reported, “So far, [the White House] has nominated people for only 43 of 553 key executive branch positions, according to a tally by the nonpartisan Center for Presidential Transition at the Partnership for Public Service.” It had earlier published a graphic also, and dramatically, illustrating this phenomenon.  

An early stage in the nomination/appointments process is the report on a nominee’s financial and possible other issues that the Office of Government Ethics files with the concerned Senate Committee.  By March 7, 2009 the Office had filed 228 reports for Obama nominees—itself a low number relative to the number of sub-cabinet positions to be filled.  By March 7, 2017 the Office had filed only 63 reports—28% of the Obama total.  And on April 4, the New York Times reported, "With a mammoth task [legislating tax reform] ahead, none of the 27 political appointees below the Treasury secretary in the department’s leadership have been confirmed."

One inevitable characteristic of the need for confirmation of important appointments is to produce constraints both on presidential choices, and on the reality of his ability to control appointees once they have been confirmed.  The process can create divided loyalties and, with them, a measure of independence.  Promises may be extracted.  The need to please a Congress whose priors may differ from the President’s is brought home.  And the President’s freedom to dismiss an official who shows some independence can be constrained by the knowledge that he may pay a political price for the dismissal—and will then need to secure confirmation of a successor.  Thus, when Anne Gorsuch left the EPA after a scandal, having illustrated her hostility to the EPA’s mission through a series of reductions in budget, personnel, and enforcement, President Reagan was constrained to appoint as her successor William Ruckelshaus—a man who had earlier established his environmental credentials, and who surely knew that the President’s practical controls over his decisions would be limited.

One can avoid this potential for divided loyalty by making appointments that are not subject to the confirmation process.  The Obama administration gained a measure of notoriety for the number of “czars” it created within the Executive Office of the President (EOP) to “coordinate” policy judgments Congress had assigned to nominated-and-confirmed officials.  Similarly, as several writers on this blog have already noted and questioned, contemporary news accounts repeatedly attach the greatest policy significance to decisions and interventions by Trump EOP actors appointed without need for confirmation.

The thickness of the political layer in American executive branch bodies—with many positions requiring presidential nomination and confirmation—creates opportunities both for assuring agency loyalty to White House wishes, and for an agency leader to create her own team.  This was dramatically indicated in the first weeks of the Trump administration, when the apparent first choice to replace Michael Flynn as National Security Adviser (itself an unconfirmed post) declined the honor after being refused permission to assemble his own staff—not wanting, as he was reported quite colorfully to have put it, to be put in a “shit sandwich.”  Secretary of State Rex Tillerson’s position was hardly strengthened when the White House rejected his choice for deputy, Elliot Abrams, reportedly in reaction to his criticisms of the Trump campaign.  Abrams, a State Department veteran who had served with distinction in previous Republican administrations, would have brought Tillerson the knowledge of the Department and its workings an outsider to government inevitably lacks.  Secretary of Defense James Mattis, on the other hand, is said to have offered the White House a choice between his resignation and removal of a deputy whose loyalty to him he distrusted.  The White House accepted the deputy’s resignation.

That the Constitution contemplates the possibility of space between the President’s wishes and the decisions of those he places in high office seems inherent both in the requirement for their Senate confirmation, and in the otherwise strange diction of Article II’s sole explicit description of the President’s authority (“power”) over the heads of domestic government agencies (as distinct from military officials, of whom he is “Commander in chief”) once they have been confirmed in office.  This is the “trivial” provision Justice Robert Jackson referred to in his famous Youngstown Sheet & Tube concurrence: the power only to require their “opinion, in writing” about how they mean to exercise duties Congress has vested “in them.” 

This ordained space underlay President Jackson’s need to run through three Secretaries of the Treasury, the last (Roger Taney) an acting Secretary, before he could get federal moneys removed from the Second Bank of the United States—despite his recent reelection in which eliminating the Bank had been a major promise.  And this constitutional structure also informs the high political costs both Jackson and Taney paid in the Senate, in the immediate wake of that removal. 

Still, between the torpor of President Trump’s sub-cabinet nominations, and his frequent preference to nominate persons lacking prior government experience, the deconstruction, or perhaps reconstruction, of the administrative state may be well under way.[1]


[1] As I was writing this blogpost, the Washington Post reported the coming establishment of a White House Office of American Innovation, under the leadership of President Trump’s son-in-law Jared Kushner, to deal with “government stagnation,” and resulting congestion, cost overruns and delays:

We should have excellence in government,” Kushner said Sunday in an interview in his West Wing office. “The government should be run like a great American company. Our hope is that we can achieve successes and efficiencies for our customers, who are the citizens .…

Kushner proudly notes that most of the members of his team have little-to-no political experience, hailing instead from the world of business. They include Gary Cohn, director of the National Economic Council; Chris Liddell, assistant to the president for strategic initiatives; Reed Cordish, assistant to the president for intergovernmental and technology initiatives; Dina Powell, senior counselor to the president for economic initiatives and deputy national security adviser; and Andrew Bremberg, director of the Domestic Policy Council. 

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Real Problem with Seila

8/24/20  //  In-Depth Analysis

Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

U.C. Hastings College of the Law

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.