As a Democratic Senate aide for the past seven years, I had a front-row seat to an impressive show of obstruction. Republicans, under then-Senate Minority Leader Mitch McConnell, decided they would oppose President Barack Obama and Senate Majority Leader Harry Reid at every turn to limit their power. And it worked: They extorted concessions from Democrats with threats of
- fiscal cliffs and
- financial chaos.
I know firsthand that Democrats’ passion for responsible governance can be exploited by Republicans who are willing to blow past all norms and standards.
Now we have a president who exemplifies that willingness in the extreme. Partly, this explains why he faces more questions about his legitimacy than any president in recent history and why he drew three times as many protesters as inauguration attendees last weekend. But in something of a mismatch, Republicans’ unified control of government means that the most effective tool for popular resistance lies in the Senate — the elite, byzantine institution envisioned by the founders as the saucer that cools the teacup of popular opinion.
Senate Democrats have a powerful tool at their disposal, if they choose to use it, for resisting a president who has no mandate and cannot claim to embody the popular will. That tool lies in the simple but fitting act of withholding consent. An organized effort to do so on the Senate floor can bring the body to its knees and block or severely slow down the agenda of a president who does not represent the majority of Americans.
The procedure for withholding consent is straightforward, but deploying it is tricky. For the Senate to move in a timely fashion on any order of business, it must obtain unanimous support from its members. But if a single senator objects to a consent agreement, McConnell, now majority leader, will be forced to resort to time-consuming procedural steps through the cloture process, which takes four days to confirm nominees and seven days to advance any piece of legislation — and that’s without amendment votes, each of which can be subjected to a several-day cloture process as well.
McConnell can ask for consent at any time, and if no objection is heard, the Senate assumes that consent is granted. So the 48 senators in the Democratic caucus must work together — along with any Republicans who aren’t afraid of being targeted by an angry tweet — to ensure that there is always a senator on the floor to withhold consent.
Because every Senate action requires the unanimous consent of members from all parties, everything it does is a leverage point for Democrats. For instance, each of the 1,000-plus nominees requiring Senate confirmation — including President Trump’s Cabinet choices — can be delayed for four days each.
While the tactic works well, as we’ve seen for the past eight years, there remains the question of strategy. Should Democrats be pragmatic and let Trump have his nominees on a reasonable timetable, so as not to appear obstructionist? So far, this has been their approach to some of Trump’s Cabinet picks.
But it’s also fair to say that, by nominating a poorly qualified and ethically challenged Cabinet, Trump forfeited his right to a speedy confirmation process, and Democrats should therefore slow it down to facilitate the adequate vetting that Trump and Senate Republicans are determined to avoid by rushing the process before all the questionnaires and filings are submitted. Four days of scrutiny on the Senate floor per nominee, even after the committee hearings, is a reasonable standard for fulfilling the Senate’s constitutional responsibility of advice and consent.
Democrats can also withhold their consent from every piece of objectionable legislation McConnell tries to advance. With 48 senators in their caucus, they have the votes to block most bills. But even when Democrats don’t have the votes, they can force McConnell to spend time jumping through procedural hoops. This is the insight McConnell deployed against Reid to manufacture the appearance of gridlock, forcing him to use the cloture process more than 600 times.
Finally, Democrats can withhold their consent from Trump until they feel confident that foreign governments are not interfering in our elections. Credible reports hold that U.S. intelligence agencies are investigating whether Trump’s campaign cooperated with the Russian government on Vladimir Putin’s personally directed meddling. Withholding consent from Trump’s agenda until an independent, bipartisan probe provides answers is not just reasonable; it’s responsible. If Democrats withhold consent from everything the Senate does until such a process is established, they can stall Trump’s agenda and confirmation of his nominees indefinitely. Sen. Richard Durbin has been a leader in demanding an independent investigation. But unless Democrats back their calls with the threat of action, McConnell will steamroll them and never look back.
Of course, it would be unwise to deploy this strategy blindly. The kind of universal obstruction pioneered by McConnell during Obama’s presidency is not in Democrats’ nature: They believe in the smooth functioning of government.
But Democrats’ concern with delivering results for their constituents is also part of who we are and something we should embrace. Even for innately cautious Democrats, some issues demand dramatic action. If Trump wants to put their concerns about his legitimacy to rest, he can reach out with consensus nominees and policies, and come clean about his ties to Russia and his tax returns (which may show whether he has compromising financial debts to Russian interests). Until then, Democrats can stand up for America by withholding their consent.
Five of the nation’s 10 largest federal law-enforcement agencies are currently operating with only interim heads amid an unprecedented long-term leadership vacuum that even some of the president’s congressional allies say is untenable.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Drug Enforcement Administration (DEA), Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP) and the Federal Bureau of Prisons all lack permanent heads.
Several of the agencies—ATF, DEA and ICE—have been without Senate-approved leadership for the entirety of Donald Trump’s term in office. That is the case despite unified Republican control of the Senate and presidency during that period, which typically leads to easier confirmation scenarios.
Because of opposition by some gun-rights groups, presidents of both parties have struggled to get ATF nominees through the Senate—but Mr. Trump has never even tapped anyone for the job. The leader of the Bureau of Prisons need not be Senate-confirmed, but even so it has only an acting director.
CBP has been run by an interim leader since mid-April because its current commissioner was tapped to run the entire Department of Homeland Security—as an acting secretary.
In part, the situation reflects Mr. Trump’s management style. He has said he prefers keeping people in “acting” roles rather than going through the Senate nominating process.
“I sort of like ‘acting,’” Mr. Trump said earlier this year. “It gives me more flexibility.”
He is giving himself plenty of that. While vacancies are common toward the end of a presidential administration, the sheer number of them across the Trump administration as well as the turnover in crucial jobs, particularly at prestigious law-enforcement agencies, is without precedent, according to Max Stier, president and chief executive of the Partnership for Public Service.
Of the roughly 700 key positions requiring Senate approval that his organization tracks, only about 400 of them have been filled with a Senate-confirmed official. Some are extremely high profile, like the secretaries of defense and DHS.
But the result is a lack of leadership stability at several agencies that enforce critical parts of Mr. Trump’s agenda. The Drug Enforcement Administration has a prominent role in curbing opioid abuse, a priority of the Trump administration. ATF is a central player in combating gang violence and illegal firearms trafficking, other law-enforcement priorities of the president.
And CBP and ICE both play major roles in enforcing immigration law, the centerpiece of Mr. Trump’s domestic agenda. The president often talks of what he says is a “crisis at the border.”
Steadiness in leadership at government agencies with police powers may be especially crucial. “A law-enforcement organization is dealing with some of the most serious powers of the state and that is the power that involves people’s liberty,” said Mr. Stier.
“One of the purposes of the constitutional system we have is the checks and balances. The Senate, one of their critical roles, is to be able to in essence vet the senior leadership of our government—choices that the president is making,” Mr. Stier said. “That absolutely is a challenge to the system of government that we have.”
Veterans of government service note that it is difficult to be an effective manager with “acting” in your title.
“To effectively lead an agency, you need as much authority and gravitas as you can muster. These are difficult jobs. Senate confirmation definitely helps,” said Robert Bonner, a former federal judge and prosecutor who was successfully nominated to lead both the DEA and U.S. Customs and Border Protection agency under two Republican presidents.
The lack of any nominees has created a messy situation at the top of several agencies—requiring tricky legal maneuvering to even name an acting successor.
ATF is currently being led by Reggie Lombardo, who holds the title of “acting deputy director.” Ms. Lombardo, who took office earlier this month after the departure of her predecessor, cannot hold the title of acting director because of a quirk in federal law caused by the lengthy vacancy and the lack of a nominee.
The current acting head of the DEA, Uttam Dhillon, had to be transferred from his White House job into a Justice Department post first—to qualify for the appointment as acting administrator because of another requirement in the agency secession rules. Mr. Dhillon was involved in the search for a DEA head while he was at the White House.
And Mr. Trump purged the leadership of the Department of Homeland Security last month in a clash over the direction of the agency. He named CBP commissioner Kevin McAleenan as the acting DHS secretary—bypassing a law that required the acting job to go to the undersecretary for Management, Claire Grady. Ms. Grady eventually resigned to resolve the issue—clearing the path for Mr. McAleenan to become acting DHS secretary.
Senate Republicans are warning the White House that the 2012 presidential candidate will face one of the most difficult confirmation fights of Donald Trump’s presidency and are making a behind-the-scenes play to get the president to back off, two GOP senators said.
.. Republican senators have generally waved through Trump’s nominees over the past two years, but they are reluctant to do the same for the Fed, amid fears that Trump’s push to install interest-rate slashing allies will politicize the central bank.
The resistance comes as Senate Republicans also actively are pressing Trump to halt his purge at the Department of Homeland Security and reconsider economy-damaging auto tariffs.
Some GOP senators said that Cain’s difficult path might have eased Stephen Moore’s confirmation to the Fed, despite Moore’s own problems with unpaid taxes and his partisan reputation. After all, Republicans might be hard-pressed to revolt against both of Trump’s nominees.
..“I think the chances of getting both through, I would say at the moment, are pretty steep,” Thune said.
Neither Moore nor Cain has been officially nominated. A senator familiar with the nominations said Trump is “full speed” ahead on Cain even though FBI background checks and documentations of sexual harassment allegations have not yet been submitted to the Senate. A person familiar with the process expects the background check to raise more questions about Cain.
With that in mind, Republicans are trying to dissuade Trump from a brutal political fight that would highlight intraparty divisions; the nominations need a simple majority and no Democratic support can be counted on.
Trump’s intent to nominate Cain marks one of his most brazen moves yet to take on his own party, coming on the heels of his emergency declaration at the southern border that went against the wishes of GOP senators who stood by Trump during the shutdown.
And once again, Republicans are sending the president clear signals: Pick someone with less partisan credentials and less baggage. While Cain did serve on the Kansas City Federal Reserve Board, Senate Republicans say he now largely appears to be a Trump surrogate.
“I don’t think Herman Cain will be on the Federal Reserve Board, no. I’m reviewing [Moore’s] writings and I’ll make a determination when I have done so,” said Sen. Mitt Romney (R-Utah), who ran against Cain in the 2012 presidential race and seems confident Cain will either be derailed or not officially nominated.
“I feel that we can’t turn the Federal Reserve into a more partisan entity,” Romney added. “I think that would be the wrong course.”
.. Cain later endorsed Romney in 2012, but one of Romney’s colleagues said the Utah senator “is not fond of Herman.” Cain also challenged Sen. Johnny Isakson (R-Ga.) in a 2004 Senate primary race.
But more troubling to some in the Senate is that Cain founded pro-Trump group America Fighting Back.
“Do you seriously want a guy on the Fed that has a whole organization, the only purpose of it is to encourage Republicans to do whatever the president says he’d like you to do?” said one Republican senator distressed about the nomination. The senator said confirming Cain would be “hard,” but his nomination alone “might confirm Stephen Moore.”
Cain’s group recently said in a fundraising request that Republicans who opposed the president’s emergency declaration were “traitors.”
The rosier reception for Moore comes in part because Republicans will be reluctant to reject two of Trump’s Fed nominees, given their desire to protect their already shaky relationship with the president. In addition to their opposition to Trump’s tariff threats and his shake-up at the Homeland Security Department, Republicans also recently forced him to back off his demand for a new GOP health care bill.
Yet it’s not clear at all that the president is keeping in mind the fact that he will need to get 50 of 53 Senate Republicans to vote for these nominees. Asked about Cain, Sen. Pat Roberts (R-Kan.) said only: “I was not aware it was that serious of a consideration.”
Stressing that he was not singling out Cain, Sen. John Cornyn (R-Texas), a whip for six years, said the White House must simply do more to consult with Capitol Hill.
“It’s really important for the White House to work with us as they’re contemplating nominees to make sure that both the White House has reasonable expectations about confirmations. We can also communicate with the White House about what the challenges of a confirmation may be,” Cornyn said.
.. It’s not clear the president quite realizes the scale of the potential task ahead to confirm his two Fed picks. A half-dozen GOP senators are bracing for competitive races next year and do not want to be seen as Trump’s lackeys. Voting against those nominees could help them assert their independence in their voting record.
Then there are senators like Romney and Isakson who have shown little fear in confronting Trump of late. Romney voted against Trump’s national emergency declaration, while Isakson stepped into a void of Senate Republicans to defend the late Sen. John McCain (R-Ariz.) from Trump’s attacks.
They won’t be alone in scrutinizing these nominees.
“Mr. Cain did serve on the regional Federal Reserves, so that is good experience. His wanting to return to the gold standard is something that is very controversial. And I don’t know the details at this point about the sexual harassment allegations against him,” said Sen. Susan Collins (R-Maine). “Stephen Moore appears to have a host of financial and other issues that are going to need to be explored, as well as the fact that he is a very unconventional choice.”
The president is evading the requirement to seek the Senate’s advice and consent for the nation’s chief law enforcement officer and the person who will oversee the Mueller investigation.
What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”
Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.
.. He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional.
.. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.
But Professor Calabresi and Mr. Trump were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very significant consequence today.
It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.
.. the the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.
.. If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.
.. Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.
.. What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government.
Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entireUnited States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.
.. We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document... Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is Mr. Trump himself, and the president is hopelessly compromised by the Mueller investigation... As we wrote last week, the Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”
We must heed those words today.