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

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.’”

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.

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:

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.”

Comments (12)

  1. Submitted by Paul Brandon on 02/05/2019 - 03:31 pm.

    In other words, there are clear grounds for impeachment whenever Congress decides to exercise that ‘nuclear option’.

  2. Submitted by Ron Gotzman on 02/05/2019 - 03:44 pm.

    Of course – such and similar – unconstitutional actions have never been done before….

    “How is it that there are so many radicals in the Obama administration? Easy – appoint them to positions that don’t require Senate confirmation or, as in the case of the radical, anti-capitalist Harvard Professor Elizabeth Warren, just skirt the process entirely.

    Obama will create a “Special Advisory Role” at the brand new Consumer Financial Protection Agency and slot Warren in the position. She will be de facto head of the agency and therefore, avoid senate confirmation.” The American Thinker

    • Submitted by Paul Udstrand on 02/06/2019 - 09:34 am.

      “Radicals” in the Obama administration… that’s funny.

      • Submitted by RB Holbrook on 02/06/2019 - 01:18 pm.

        Have you ever read The American Thinker? It’s rife with insane right-wing conspiracy theories, and features articles by some of the most unsavory types out there (Jared Taylor, Pam Geller). They are also big Putin fans, because he is going to save us from Islam and the destructive influence of LGBTQ people.

    • Submitted by Dennis Wagner on 02/06/2019 - 07:10 pm.

      Wow, Harvard professor’s are radicals! Kind of suggests the more education you get the more radical you become? So, what do non-radical folks look like? The more uneducated the more non-radical?

  3. Submitted by RB Holbrook on 02/05/2019 - 03:49 pm.

    Trump’s disregard of the Constitution is enabled by Congress, especially the Senate. The only question is, why is Congress not acting?

    Is it cowardice? Are they so afraid of the Trumpian base that they are ignoring their constitutional obligations to act as a check on the executive? Perhaps this is what turned Senator Graham from a harsh critic of Trump into the very model of a lickspittle.

    Or could it be something else? Trump’s one major piece of legislation has been the upper-class tax cut. Such a tax cut has been part of the Republican theology for years. Trump is also dismantling regulations, especially environmental regulations. He is doing it for no better reason than a childish impulse to undo everything President Obama did, but Republicans in Congress have more conventional ideological interests. Still, what do they care? It’s what they wanted.

    Leaving aside the uncouth behavior and his tendency to say the quiet parts out loud, the Goniff-in-Chief is governing like any bog standard Republican. Republicans are getting what they want, so they are more than willing to overlook the shredding of the Constitution and the disdain for any norms of governance. All the pieties about the Constitution we heard from the right during the Obama years are suddenly not so important, now that the Kenyan Islamo-fascist usurper is out of the way.

  4. Submitted by Ray Schoch on 02/05/2019 - 06:47 pm.

    For what little it’s worth, I view this trend as something more dangerous than a “game,” and something more serious than violating established norms.

    If Mr. Trump is as undeveloped intellectually as he appears, and as morally ambiguous as his actions and words have demonstrated, it’s quite possible that he’s not only in the pocket of a Russian oligarch (or group of oligarchs), but that he is actively cooperating with those Russian “people of money” (I bow to Mr. Schulz of Starbucks, who suddenly dislikes being called “a billionaire.”) to subvert what has been the economic and political engine of the planet for the past century. In short, he’s a traitor.

    On the other hand, his failure to fill all those appointed positions so that he can maintain his “flexibility,” thus carrying the “You’re fired” theme of his reality television show into the real-world political arena could just as easily be the public personification of a spoiled 4-year-old whose ire is easily provoked, and who has never had to delay gratification in his life, at least not until he took his present job. That makes him less a tool of a foreign power, though not much less, and more a tool of domestic movers and shakers – people of both wealth AND political influence, who very much enjoy having their own puppet executive steering the ship of state.

    Not filling those government posts with qualified people, vetted by Congressional committees in public hearings demonstrates a total and abject failure on the part of Republicans, who have controlled Congress for these first 2 years of the Trump presidency to actually govern the country. They’ve done, literally, nothing to hinder Mr. Trump’s temper tantrums, or moderate his more vindictive and malevolent tendencies, or at the very least try to insist that he nominate people for cabinet positions who might rank the welfare of the country at least slightly higher than their own personal egos and bank accounts.

    Hiring “yes men” exclusively, providing them with no job security so that they will remain loyal to the President, rather than loyal to the country, is not just something that could easily qualify as impeachable. Those are the actions of an autocrat – a tyrant in the making. In speeches and executive orders and hysterical tweets based on prejudice rather than fact, Mr. Trump has proven himself to be a superb salesman of authoritarian Kool-Aid, and his base, not to mention fellow Republicans, to be avid consumers of a drink that, as the nutritionists would be happy to tell you, is dangerous if consumed regularly, and potentially disastrous for the health of both individuals and the body politic.

    • Submitted by Paul Brandon on 02/06/2019 - 07:11 pm.

      In other words, staffing his administration with badly ‘acting’ individuals lets him avoid the embarrassment of Congressional oversight and the resulting denial of his appointments.

  5. Submitted by Tom Christensen on 02/06/2019 - 08:36 am.

    I think Trump relies on the part of the oath he took as his escape clause. It says to the “to the best of my ability”. Trump, as man of extremely low ability, is still doing the best of his ability. SAD!

  6. Submitted by Paul Udstrand on 02/06/2019 - 09:35 am.

    Trump is a Fascist, of course he’ll ignore a Democratic Constitution as much as he can.

  7. Submitted by Connie Sullivan on 02/06/2019 - 11:38 am.

    Anybody paying attention also to Trump’s Administration absolutely refusing to give the Congressional Budget Office the reports it has asked for (and which the executive is required by law to give them) on the expenses incurred by Trump’s weekly trips to Mar-a-Lago?

    The only jonth there’s data for is from right after Trump
    s inauguration–total expenses were about $13.6 million dollars to take Trump and Melania, et alia, to and from his resort in Florida and to his golf clubs in New Jersey and whatnot. (He’s spent about 250 days golfing so far–just sayin’)

    There is no reporting on any of the other months, because Trump has instructed the Secret Service and all other relevant agencies to refuse to report expenses.

    Let’s see: eleven months in 2017, 12 months in 2018 and so far, a month in 2019: 24 months at let’s say, $13 million a month? We may be looking at about $312 million of taxpayer dollars, just for Trump NOT to spend time in the White House.

    Non-repprting is the unlawful way Trump hides his abuses on money from the public.

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