Is Senate abdicating Constitutional authority?

A bill recently reported out of a key Senate committee would vest the authority to appoint several hundred executive-branch officers in the President alone—and not all those officers are “inferior” enough to merit this consideration.

S. 679, the Presidential Appointment Efficiency and Streamlining Act of 2011, would change multiple current laws that establish several officers in the Departments of Agriculture, Commerce, Defense, Education, Health and Human Services, Homeland Security, Housing and Urban Development, and Justice. The law strikes the phrase “by and with the advice and consent of the Senate” from the Presidential instruction to “appoint” those officers. The Heritage Foundation estimates that this would affect “several hundred” officers in these departments.

The duties of these officers vary from relations between the executive and the legislature, to financial management, to compiling statistics. But the law also affects several senior officers in the Department of Homeland Security, including its Chief Medical Officer and officers in charge of “domestic preparedness,” the Fire Administration, and “counter-narcotics enforcement.” This probably prompted the Heritage Foundation to protest:

It does not appear that the sponsors of S. 679 have determined that each of the offices the bill converts from appointments made by the President with Senate consent to appointments made by the President alone is an office of little or no authority or consequence. Instead, it appears that the principal sponsors simply concluded that the Senate is too slow in performing its duty to consider and consent (or not) to presidential nominations and hope to accelerate the Senate process by simply reducing the number of such nominations the President must make.

Heritage also suggested that if the Congress determined that some of these offices did have little or no authority or consequence, then perhaps they shouldn’t exist.

The bill also sets up yet another advisory group to decide how to “streamline” the appointment and confirmation process for those officers that still must seek Senate confirmation.

The Homeland Security and Government Affairs Committee reported the bill out with an “amendment in nature of substitution,” with a do-pass recommendation.

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The Constitution provides that the President must nominate, and the Senate confirm, “ambassadors, other public ministers and consuls, judges of the Supreme Court,” and any other officer whose office the Congress establishes. The Constitution also says that the Congress could

vest the appointment of these inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

At first glance, S. 679 follows this Constitutional provision. But it sets a thoroughly bad precedent for letting the President alone appoint any officer of any department (except that department’s Secretary). This is supremely ironic, because previous Congresses (during Republican administrations) have openly criticized Presidents for being “imperial.” One of the prize features of imperial (or regal) power is the power to appoint ranking law-enforcement and other officers without regard to the Congress. This is exactly the sort of power that S. 679 vests in the President. (See also “Senate Seeks to Create Caesar,” Noisy Room, May 8, 2011.)

More troubling than the text of the bill is its list of sponsors. Senator Charles Schumer (D-NY) introduced it. This should surprise no one. But seven Republicans (Lamar Alexander, TN; Scott Brown, MA; Susan Collins, ME; Mike Johanns, NE; Jon Kyl, AZ; Richard Lugar, IN; and Mitch McConnell, KY) should have joined Independent Joseph Lieberman (CT) and seven other Democrats in addition to Schumer. Clearly, both parties are vastly ignorant of the basic principles of the Constitution.

Heritage suggests that the executive branch needs to speed up its nomination process, and the Senate act more swiftly on the nominations that come before it. (Your editor has another suggestion: start abolishing Cabinet departments and other agencies, because the government is too big anyway.) But removing any officers from the Senate confirmation process completely threatens to set up a permanent regime of “czars” of this-or-that, not one of whom came before the Senate. One can only hope that the House of Representatives, which must agree to any such legislation affecting Presidential appointment authority, will have better sense than these sixteen Senators have shown.