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Why Trump ‘likes acting’: constitutional evasion

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.

President Donald Trump
President Donald Trump
REUTERS/Carlos Barria

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.”

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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.