Monday, April 25, 2011

Reduced Appointments Role for Senate

The Senate Committee on Homeland Security and Governmental Affairs earlier this month reported out S. 679, a bill to reduce the number of Senate-confirmed positions in the executive branch and to streamline the appointment process.  The NYT reported on the bill here.  (Thanks to Timothy Peterson for the tip.)

The positions that would be exempted from Senate confrimation are largely assistant secretaries and positions at about that level.  The bill would also create a task force to reduce the paperwork requirements for executive appointments.

The bill apparently enjoys bipartisan support, but some argue that it would do away with an important check on presidential power.  Here's David Addington, former counsel to former VP Dick Cheney, writing on the Heritage Foundation web-site:

The Framers of the Constitution did not give the President the kingly power to appoint the senior officers of the government by himself. . . .

The Congress should not decide by law to relinquish the Senate role in filling a federal office and leave filling the office to the President alone, unless the Congress concludes for each such office that the Senate's checking influence on the President is of no value because the office is of little or no authority or consequence.  Generally, each time Congress by law removes the Senate from a role in the appointment to a federal office, the institutional influence of the Senate diminishes by a marginal amount and the influence of a President increases by a marginal amount.  If the office is of little or no authority or consequence, the shift in influence may be immaterial, but if the office wields power that affects the American people, the Congress should not abdicate the Senate checking function.

Addington's point is overstated.  The offices exempted under S. 679 are inferior offices, and Congress can vest their appointment in the President alone under the Appointments Clause.  It's true that this means Congress loses, and the President gains, a little power.  But that's power that resided in Congress only by virtue of legislation.  The Appointments Clause in the Constitution, which reflects the balance struck by the framers, allows Congress to vest appointment of these positions in the President.  Thus if anything, the bill would move to restore that original power balance.


Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink

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