The Cabinet and the Rule of Law

David Driesen

Feb. 6, 2017

To carry out their duty under the Constitution, senators must ask themselves the following question when considering a president's cabinet nominee: Will this person faithfully execute the laws, even if the president wishes to ignore them and carry out a contrary policy? Unless the answer to that question is a clear "Yes," they must reject the nominee. 

Alexander Hamilton explained in The Federalist Papers that the Constitution authorizes the Senate to disapprove of presidential nominees to discourage the president from nominating candidates "personally allied to him" lest we have office holders with the "pliancy to render them obsequious instruments of his pleasure." The founders required Senate approval of "officers of the United States" to make sure that the executive branch faithfully executes the law, rather than formulates policy on its own. To that end, the Constitution requires all federal officeholders to swear an oath, not to obey the president, but to obey the Constitution. This rejection of fealty to the head of state marked a break with prior tradition, a change aimed at securing a rule of law. Senate approval would also help bring stability, argued Hamilton, preventing "violent. . . revolution in the officers of the government." 

Many senators seem to have forgotten their constitutional duty precisely in the hour when the rule of law so painstakingly constructed in the Constitution is most under threat. President Trump seems hell-bent on replacing executive branch fealty to the law with fealty to him personally. He has signed a series of decrees that encourage federal employees to ignore their oath and pursue contrary presidential policies instead. 

He has harassed federal employees in ways that suggest a desire to get conscientious employees to resign. For example, he ordered EPA employees not to disseminate any information, even scientific facts, to the public. Trump also ordered the Department of Health and Human Services not to provide information requested by members of Congress, thereby thwarting congressional oversight aiming to secure compliance with the law. 

His actions suggest that he will fire those who adhere to the rule of law instead of the rule of Trump. He reportedly forced the resignation of the State Department's senior management team and threatened to fire State Department employees protesting his immigration decree. These actions create fear going far beyond the State Department, which has experienced a mass exodus of career foreign service officers. 

His actions suggest a cunning effort to substitute personal power for the rule of law. Politicians and journalists who interpret his actions only as well-intentioned policy blunders may be repeating the error they made during the election – underestimating Trump's intelligence and his ability to seize power. Replacement of conscientious officials with no-questions-asked-loyalists, combined with attacks on the media and demonization of opponents, has led to loss of democracy, not only in countries where an actual military coup took place, but in kleptocracies like Turkey and Hungary. In many countries, judges will not constrain government officials when they violate constitutional rights because a government staffed by loyalists will not obey court orders. 

Senators who approve a nominee because the nominee supports policies contrary to existing law, but in line with the senators' current policy preferences, risk serious damage to the rule of law, which in the long run provides the foundation for limited government. Rules may annoy those who must comply with them, but a majority coalition can modify them if they become overly burdensome. Government by a single mercurial leader can destroy capitalism and democracy in ways that legislators cannot rectify. In kleptocracies, businessmen who stand up to political leaders may lose their businesses and those who cooperate may obtain rewards. The instability of autocratic rule destroys the foundation for a prosperous economy. 

President Trump has yet to send a bill to Congress to create jobs through infrastructure spending, but he has shaken down business leaders to keep jobs in the country, a sign that he plans to substitute personal power for the rule of law. He has not consulted with Congress even on policy initiatives that a majority of its members would probably support, likely because doing so does not maximize his own power. 

One day soon, Congress may need to pass a law that Trump does not like to deal with an urgent problem. If the entire executive branch simply ignores it, Congress will have only itself to blame. Zealous opponents of existing law do not belong in the cabinet.

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