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‘Acting’ officials: Another way Trump gets around Congress is detailed in WaPo article

Under Trump, a hugely unprecedented number of “acting” officials occupy top federal jobs that, by law, are supposed to be filled by people nominated by the president and confirmed by the Senate.

If I were writing articles of impeachment against President Donald Trump, I would certainly include one that accuses him of violating his Oath of Office.

Other members of the federal government take oaths when they are sworn in. But the president is the only one who repeats an oath that is actually part of the text of the Constitution itself:

Article 2, section 1, Clause 8: Oath or affirmation:

“Before he enters the Execution of his Office, [the president-elect] shall take the following Oath or Affirmation:—‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’”

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I don’t know if Donald Trump had his fingers crossed when he took that oath. But he acts like it.

He doesn’t protect or defend the Constitution. He doesn’t faithfully execute the powers of the presidency. He assumes into existence whatever powers he thinks he needs to do whatever it is he wants to do.

I don’t know if Trump has ever read the Constitution. I doubt it. When he talks about law or U.S. history, he comes across as an ignoramus, and I doubt that’s an act. He treats the Constitution as an annoyance to be gotten around whenever it gets in the way of his whims. And, so far, he’s pretty good at getting away with it.

He won’t read this, but I offer him (and you, dear MinnPost readers) some basics about the Constitution as actually written.

Congress has a long list of powers, enumerated in Article I, section 8. It is beyond any doubt that the Framers intended for Congress to be the main power center in the government they were creating and, in the area of national lawmaking, they were almost the whole show.

The powers of the president are few. Article II is brief. His role in the making of federal laws is limited to signing or vetoing bills that have been passed by both houses (and even the vetoes can be overridden, and even laws that have passed without his approval are part of his obligation to “faithfully execute”).

Unlike Trump, the scribbler of Black Ink likes to acknowledge awkward and contrary facts. For example, it’s true that the powers of the presidency have grown, fairly steadily, over the 23 decades since the Constitution took effect in 1789, sometimes by law and mostly by practice.

Thomas Jefferson, when he closed the deal with France in 1803 to purchase from France the vast Louisiana Territory (which included all or part of 13 of the now 50 states, including most of Minnesota), knew it probably exceeded his authority as president. He felt it was too good an opportunity to pass up and soon got retroactive congressional approval in 1804. (That helps.)

But we’ve never had a president so contemptuous of the other branches, and of the established limitations on executive power. Unlike Jefferson, Trump acts without knowing or caring whether he exceeds his constitutional powers and – especially now that Trump’s party no longer controls both houses of Congress – he takes actions that he knows would not be approved by Congress.

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Recently, I discussed the danger of allowing the current incumbent to use, or threaten to use, his emergency powers to do things that should require, but for which he cannot obtain, congressional approval, to address matters that are not reasonably defined as “emergencies” (like the “power” to build, without congressional approval, a “mighty wall” to reduce the already declining number of illegal border crossings from Mexico. (I understand, he promised it to his “base.” But that embarrassment doesn’t make it an emergency. See this Washington Post about how NOT an emergency that situation is.)

But what set me off on today’s rant against Trump’s seemingly bottomless need to expand his powers was actually this Post piece, which is not about the invention of non-emergent emergencies but about another way that Trump has found to show his contempt for established rules and norms of American government.

Under Trump, a hugely unprecedented number of officials occupy top federal jobs that, by law, are supposed to be filled by people nominated by the president and confirmed by the Senate, but whose nominations, in the Trump era, have not even been submitted to the Senate for consideration and hold their jobs on an “acting” basis. The Post quotes Trump’s explanation, which he offered in an interview with CBS News that aired Sunday:

“I like ‘acting’ because I can move so quickly,” Trump said. “It gives me more flexibility.”

Pretty blatant. These are jobs for which the law gives members of Congress a role. But Trump prefers to deprive them of that role. And he figured that you could game the system by using “acting.”

At the moment, after two years of Trumpism:

Acting secretaries or administrators are running the Departments of Defense, Justice, Interior and the EPA.

The Departments of Labor, Justice and Interior had fewer than half of key positions filled by someone confirmed by the Senate. Treasury, Transportation, Housing the Urban Development had less than 60 percent filled with confirmed officials. Four more departments (including the State Department) were in the 65 percent range. Four more (including Defense) departments were in the 70s, percentile-wise. Only one (Veterans Affairs) was operating with more than 80 percent of the positions filled with confirmed appointees, but of the 17 percent that were unfilled, none even had a nominee pending.

Once you decide that everything is a game, the point of which is to give Trump flexibility to put people in jobs and take them out without Congress sticking their noses in, you get transparent game tactics like this, from the Post piece:

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Last week, acting interior secretary David Bernhardt amended an order his predecessor, Ryan Zinke, signed in November to keep eight handpicked deputies in place without Senate approval. Under the revised order, these appointees can serve in their posts for another four months, unless they are replaced or the department decides to extend the deadline once again.

At both the departments of Interior and Veterans Affairs, officials have assigned deputies to perform the critical functions of Senate-confirmed officers but have stopped short of calling them “acting” to avoid the legal requirements of the Federal Vacancies Reform Act. That 1998 law stipulates that individuals cannot occupy Senate-confirmed posts in an acting capacity for longer than 300 days during a president’s first year, and more than 210 days in subsequent years.

After VA’s acting deputy secretary Jim Byrne hit his 210-day mark this past month, Secretary Robert Wilkie gave him a new job as of Jan. 14 — he designated Byrne as “general counsel performing the duties of the deputy secretary of Veterans Affairs,” according to department spokesman Curt Cashour.

That last one is pretty hilarious. Trump already used the “acting” gag and he would have had to submit for confirmation to keep the job any longer, so, with transparent disregard for the norms of seeking confirmation for posts that legally require confirmation, Trump changed his title but left him in the same job.

How much more blatant can you be about declaring that Congress has no business considering the qualifications and suitability of Trump appointees to jobs that the law specifically says should be considered by Congress as to their qualification and suitability to hold those jobs?

Trump, like all his predecessors, swore to “execute the Office of President of the United States, and … to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

But the unspoken ending in the mind of this president may have been “as long as the Constitution doesn’t get in the way of my ‘flexibility’ to do what I want. If that happens, there’s bound to be a loophole.”