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Why Trump ‘likes acting’: constitutional evasion

President Donald Trump
REUTERS/Carlos Barria
President Donald Trump

Donald Trump “likes acting.”

He said so himself, directly, in so many words, but he wasn’t talking about “acting” in the thespian or dramaturgical sense. He was talking about the joy he has found in evading yet one more provision of the U.S. Constitution.

I’ll get to that provision in a minute. But first, while we’re on “acting,” for reasons too autobiographical and embarrassing to discuss at length here, I’m quite familiar with the play “You’re A Good Man, Charlie Brown,” an off-Broadway musical comedy hit of the 1960s based on the “Peanuts” characters of Charles Schulz.

‘There must be a loophole’

In one number, Lucy announces that her aspiration is to grow up to become queen. When Linus explains to her that it’s difficult to become queen without being born or marrying into it, Lucy rebels and objects: “There must be a loophole. This sort of thing always has a loophole.”

So it is with our current president who thinks he is king, or, to the degree that he suspects that he is not fully king, seeks to find the loophole that will enable him to cheat the system in ways large and small to, one might say, kingify up the powers of a president.

One such loophole way is to rely on “acting” officials to run the executive departments and agencies.

“I sort of like ‘acting,’ ” Trump has said. “It gives me more flexibility; do you understand that? I like ‘acting.’ ”

Presidents have almost total flexibility to nominate officials for Cabinet and other high agencies, but the Constitution, about which Trump knows little and cares less, requires that presidential nominees to Cabinet (and other high positons, as specified by law) be subject to Senate confirmation.

King Donald I already has a Senate that, under the direction of his slavish ally Majority Leader Mitch McConnell, is prepared to do his bidding on most things, doesn’t really need to worry much about getting his nominees approved. But still, he likes “acting” because it gives him even more “flexibility” to hire and fire and removes any confusion about who is the boss.

The reason for allowing presidents to appoint acting officials to fill key vacancies is to avoid a long vacancy, but was not designed to enable president to take away the Senate’s role as a check on a president’s power.

Alexander Hamilton’s view

In case you wonder whether I am imagining the reason for requiring a Senate confirmation of nominees to high executive authority, I would refer you to no less an authority than Alexander Hamilton, a key member of the band of brothers who wrote the Constitution and one of the leading players in the campaign for its ratification, and himself an advocate of a very strong executive.

But, writing in Federalist Paper No. 76, Hamilton explained why the Constitution itself imposed on the president the requirement that nominations to high positions be submitted to the Senate for confirmation.

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other.

He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

Allow me to repeat a little bit of that for emphasis. Hamilton, who, as I said, was an advocate for a very strong executive, also understood that, after starting and winning a war to overthrow the power of a king over them, Americans in 1787-89, who were being asked to approve a new system of government that would create a strong executive office with somewhat kingly powers, were looking for checks on that power, checks would be administered by the balance of power with others in the new governing scheme, and that, in the matter of appointments to top government positions within the executive branch, they were looking for checks against a president who might abuse their appointment powers by naming officials whose sole loyalty would be to their boss, the president, and not to the larger enterprise, a republican government of specified and limited powers.

Put in place, fired, replaced at will

But Sir Donald isn’t too interested in limits on his power, nor anything less than full personal loyalty and lickspittle devotion from those who run important executive agencies. So, to whatever extent the requirement that his nominees be approved and ratified by others, he prefers to do away with it. An acting official can be put in place, fired, and replaced by another acting official and no one outside of the king Himself has anything to say about it.

And so, when he learned a president is expected, nay even required, to submit his nominees for Senate approval, he reacted like would-be Queen Lucy: “There must be a loophole. This sort of thing always has a loophole.”

And he believes he’s found a perfect loophole. He appoints people on an acting basis, they begin to do the job relying entirely on him, and he cares little whether they ever get the constitutionally mandated stamp of Senate approval.

And he’s flogging the hell out of that loophole. It gives him more “flexibility” than the framers of the Constitution intended. And that’s fine with him.

The full “federalist Paper, in which Hamilton lays out how this was intended to work, is available here.

Comments (16)

  1. Submitted by Ray Schoch on 04/28/2020 - 10:37 am.

    A man who regularly vilifies and does his best to humiliate those whose mere opinions differ from his, or who have demonstrably more knowledge about a given subject than he does, has no qualms about appointing “lickspittles” to relatively high office on an “acting” basis. Mr. Trump has demonstrated, repeatedly, that “shame” is a quaint Victorian concept with which he has little or no personal experience, and “acting” cabinet officers, deputies, staff positions, etc., allow him to run the federal government as a puppet show, with the President manipulating the strings. In other words, appointing “acting” federal officials allows him to exercise his authoritarian / dictatorial instincts without arousing suspicion among his supporters, some of whom might respond negatively to the notion of being governed by an emperor with few redeeming qualities.

  2. Submitted by BK Anderson on 04/28/2020 - 10:42 am.

    Trump has the law-evading mentality of a mafia don and his administration is run largely on organized crime models. This isn’t a surprise, since dictators and mob bosses are the figures our authoritarian Trump personally admires.

    It should be especially noted here that this “acting” abuse by Trump is a feature, not a bug–he operates unconstitutionally in virtually every sphere of executive operations, from wrongfully converting appropriations to the abuses of office he was impeached over.

    Also noteworthy is that this isn’t just an abuse being perpetrated by strongman Trump–Gravedigger of Democracy McConnell and his (minority faction) senate “majority” are biting their tongues and permitting this systematic abuse as well. They are perfectly willing to allow serial executive violations of the Constitution as long as one of their tribe in the Oval Office.

    Ultimately, “conservatism” and the Constitution cannot co-exist.

  3. Submitted by Chuck Tremain on 04/28/2020 - 12:07 pm.

    Does “acting” nullify the 25th amendment?

  4. Submitted by Brian Simon on 04/28/2020 - 01:04 pm.

    If there is one fundamental flaw in the Constiturion, it is the presumption that officeholders will act within expected norms of their offices. It did not imagine that multiple branches of government would collude to subvert the will of the people.

    • Submitted by Barry Tungseth on 04/28/2020 - 06:30 pm.

      Hitler understood, and so does Trump.

      • Submitted by Paul Brandon on 04/29/2020 - 10:40 am.

        A dangerous comparison.
        Hitler had armed thugs (the Brownshirts) and ended up with no governmental opposition of any significance. And the German resentment of the end of WWI was stronger and broader than anything that Trump is riding.

  5. Submitted by Mike Chrun on 04/28/2020 - 02:00 pm.

    And this reliance on “acting” has prevented formulating and enacting the most effective response by our federal government to the pandemic. The constant turnover of officials and head of departments prevents a coherent and organized plan. There were the stories about how Obama officials went over a pandemic scenario with incoming Trump appointees to prepare them. Virtually all those officials are now gone, replaced several times over by new people. The further they were from the warning scenario, the less knowledge and interest they had.

    You’ve also got the dynamic playing out of intrigue, backstabbing, and mistrust as these acting officials try to stay in Trump’s inner circle while shoving out rivals. Basically kissing Trump’s butt while trying to stave off the next person in line doesn’t lead to good policy. Then there is the whole “appointment of unfit characters” that Hamilton saw as a real threat. When loyalty to an idiot who even muses about injecting disinfectants into people to fight a virus is a prime requisite for a position, I’m going to venture that we’re not getting the top talents to lead us through this, the good Doctor Fauci not withstanding. Example number one is the insipid son-in-law of Middle East peace fame. Jared sort of disappeared from the headlines after his big splash of garnering virus fighting suggestions through Facebook but quite sure he’s been busy with the primary goal of turning the pandemic into more cash for himself and his buddies. There’s nobody to challenge someone like that because the rest of them are so beholding to the buffoon in charge.

    It really is no surprise that Trump is now running the administration using the same principles he used for The Apprentice,” and our country is paying the price. It’s the perfect mechanism for him as it feeds his paranoia, narcissism, and insecurities. I’ve always thought “Dr. Strangelove” was the perfect dark comedy about government gone mad; but someone could make one easily as dark and as weird with what is going on now. Casting the toadies and sycophants would be such fun.

  6. Submitted by Dennis Wagner on 04/28/2020 - 02:12 pm.

    Looks like the Trump Zombies like it that way as long as they can have their guns for when the next revolution comes, guess their a little slow on the draw, the “constitution” has already been overthrown by King Donald, W/O a shot fired.

  7. Submitted by Dennis Barrett on 04/28/2020 - 02:55 pm.

    Headline: “Mnunchin Says No Bailout For States With Poorly Managed Budgets”. Now Eric, aren’t you glad Republicans held on to most of the 2.1 billion surplus?

  8. Submitted by Jon Kingstad on 04/28/2020 - 03:57 pm.

    President Obama’s recess appointees to various federal agencies were held unconstitutional and in violation of the “Recess Appointments Clause” Article II, Section 3 by a unanimous Supreme Court in 2014. Obama had made such appointments in 2012 because of Moscow Mitch’s control of the Senate to blockade of anyone appointed by Obama. Here’s what the NY Times reported on June 27, 2014 by Miguel Estrada, a lawyer for Moscow Mitch:

    ” . . . the decision was a victory for the Senate and the separation of powers. `The Supreme Court reaffirmed the Senate’s power to prescribe its own rules, including the right to determine for itself when it is in session, and rejected the president’s completely unprecedented assertion of unilateral appointment power,’ he said.”

    Why isn’t Moscow Mitch bringing a lawsuit to vindicate this “unprecedented assertion of unilateral appointment power” under Article II, section 2 where there’s nothing about “acting appointments”? Of course, “this sort of thing always has a loophole.” It’s called the “Republican loophole” for anything in the Constitution. That only applies to Democrats.

  9. Submitted by Richard Steuland on 04/28/2020 - 05:16 pm.

    A planned attack upon democratic and human values began in earnest when the Republicans joined with the Christian coalition. Oddly wedge issues brought out worst inclinations. Now hate, bigotry, race baiting, homophobia and sexism became policy positions reflected in the platform. Of the republicans. The march towards an authoritative state continues with a full blown attack upon our Democratic values with intention by Trump and his fellow Republicans. Can they be stopped? Yes, indeed. Wake up and act .

  10. Submitted by RB Holbrook on 04/29/2020 - 09:17 am.

    Trump does not like oversight of what he does. That’s been shown when he said he wouldn’t abide by the Congressional requirements in the CARES Act. The only response he wants to hear from what he does is unqualified praise.

    He also, in my opinion, does not like having to ask for permission. Even though any confirmation proceedings in the current Senate would make a mockery over the Advise and Consent clause, with the Republican majority tugging its collective forelock and apologizing that it is taking so long to accede to the Great Helmsman’s will, it still amounts to a formal recognition that the President just can’t do whatever he pleases. It’s a step he has to go through, and it’s not something he thought of himself.

    The Republicans in the Senate are content to abdicate their Constitutional role, at least for this President. The vociferous wrath of the MAGA kids scares them on one level. On another level, confirmation hearings would continue to expose the bottom-of-the-barrel quality and ethical indifference of those who are filling key positions. When that is placed against the general cluster**** that this administration has been, undecided voters could decide real quickly that enough is enough. Put another way, what would the public reaction be if, say, Secretary DeVos were facing Senate confirmation this year?

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