by John F. Di Leo -
Reflections on Presidential Appointments, in the wake of losing Justice Scalia...
Article II of the Constitution begins, “The executive Power shall be vested in a President of the United States of America.” It then goes on to stipulate how the president shall be chosen, what his powers are, and how he may be removed, when necessary to protect the nation. Subsequent amendments have clarified the matters of election and removals, and we have had all manners of presidents in these 227 years – old and young, firm and meek, principled and “open-minded”...
But regardless of how they came to their jobs – whether in the smooth transition of an election season or the monumental shock of a predecessor’s assassination or natural death – every president has begun his term the same way: by swearing the Oath of Office.
The president does not swear an oath to represent his constituents, or to share the goodies with his political party, or to pass out government jobs to the workers who got him into office. He only swears an oath to do one thing:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
That’s it. It’s the Constitution - not an individual - that protects the country, represents the constituents, and employs federal civil servants. The Constitution is the supreme power of the United States government; the Constitution is the public servant that holds the government at bay and keeps it from overreaching its boundaries. The Constitution is what keeps the Leviathan in check.
“To The Victor Go The Spoils”
It’s a long-established truism that elected officials have the opportunity to clean house and appoint new people to the positions under the officials’ command. Legislators appoint new legislative aides; mayors appoint new deputy mayors and budget directors; presidents appoint new cabinet secretaries.
But this fact is often misinterpreted. There is a common assumption that by electing a person, the voters have given their blessing to whatever philosophy the candidate espouses. You’ll hear “He won the race; he has the right to put his people in.”
Nothing could be further from the truth.
In fact, as evidenced by the wording of the president’s oath of office, an elected official has only limited flexibility: the flexibility to do what the law says he can do, and to appoint people to offices below him who will also obey the law.
No legislator, judge, governor or president is empowered to make his own law, his way, just based on the fact that he won an election.
Think of a sports analogy. You’ve selected your champion to be the designated hitter, the quarterback, the jockey, the power forward. He has the privilege to wear the team’s colors, to play or race as hard as his ability and style allow, but he must still obey the rules of the game.
He can’t trip the other players because “that’s just how he plays.” He can’t cut across the diamond from first base to third, or kick the referee or pull the waterboy onto the field to trip up the opposing team members chasing him, just because “the people selected him as their player; he deserves a chance to play the game his way.”
In short, whether we’re talking about an athlete or a politician, he can’t throw out the rulebook, or even be ‘creative’ in interpreting it. The rules are the rules, and they limit his actions.
…Because we simply do not create a new and different government every two or four years, based on the viewpoints, prejudices, and political theories of each newly elected crop of politicians. We have not changed our form of government since 1788.
We elected George Washington, and John Adams, and Thomas Jefferson, and right down the line to Barack Obama, because a majority of participating voters believed that the winners were the ones they wanted to entrust with this responsibility.
These presidents have the right to appoint their people to the offices below them, only to the extent that they too will follow the Founders’ vision in strictly obeying the law, and in keeping the government small. Just like the 42 presidents before him, Barack Obama’s job is to execute the laws that were passed by congress, by appointing people and writing enabling regulations that fall within the boundaries set by the law. No president can exceed those bounds, nor can he appoint subsidiaries who would wish to do so.
To use a single example: the president can legally select his choice of a person to enforce the 2nd Amendment, making sure that no branch of government attempts to restrict the rights of law-abiding citizens to be armed… but he cannot legally select someone who would try to undermine the 2nd amendment. It’s the law that rules America, not the flawed individuals our whims, fears, or misjudgment make put into those roles. Such an appointment itself would be unacceptable.
There is a reason the Framers put ‘advise and consent’ into the Constitution; they knew that occasionally a president would propose the wrong people for jobs, so they put in place a provision for the states – working through the US Senate – to vet every such appointee and reject unsuitable ones.
The entire assumption that a president has a right “to have his people” is fundamentally errant. The president has no such right. He only has an obligation: to appoint people who will honor the Constitution.
Honoring the Constitution
We hear this one a lot, in various ways, in confirmation hearings. “Will you honor the Constitution?” “Will you interpret the Constitution as the Founders intended?” “Will you obey your oath of office to support the Constitution?”
Such questions – and the answers they evoke – are meaningless if the questioners and the appointees have a different interpretation of what the Constitution is all about.
In one respect, the Constitution is a structure.
Part of its function is to lay out the framework of our national government. It split the lawmaking function in two, by establishing a House of Representatives elected directly by the people, and a Senate populated by statesmen appointed by the state legislatures and governors. It established a strong executive, and laid out the path to his election, his qualifications, and his removal when needed. And it established an independent judiciary, appointed by the president and either approved or rejected by the Senate, with unrelated terms of office so they might outlast both presidents and senators alike. The laws, regulations, and appointed judges are the long-lasting structure of our government; the people we vote on to inflict these rules and judges upon us are ephemeral by comparison. The intent was to make it difficult to create such things, since the Framers knew these long-lasting decisions would be the true danger to the Republic over the long term.
In another respect, however, the primary function – yes, the real issue of importance – of the Constitution is to be a boundary, a wall… a moat full of alligators, an electrified barbed-wire fence… around our government itself.
The Framers knew that government would grow – it is the nature of humanity. They knew that the central government would attract people – good and bad, wise and foolish – who would want to make their mark, who would want to establish their own great ideas. And the Framers knew – not just theorized, but KNEW – that most such changes would be bad for America, not necessarily because of bad intentions, but simply because of the founding principle that government that governs best, governs least.
When we say that the Founders believed in freedom of speech, of religion, of the press… when we say that the Founders believed in individual liberty… it is true, but in a way, the conversation bypasses the original Constitution and skips ahead to the Bill of Rights.
In fact, a more useful way to look at the Constitution is to recognize its function as the Founders’ belief in Limited Government.
It is a laundry list of responsibilities: Congress will do this, and this, and this… the president will do this, and this, and this…. And that’s it. They will do nothing more. Period. Full stop!
The Constitution designed a tiny government, a government that would keep the central government as small as possible. Before we even look at a question of individual rights, we must ask the question “is the government authorized to get involved in this area at all?” And if not, it’s unconstitutional, whether we look at the questions of 1st or 2nd Amendment protections or not!
So, when we look at a presidential appointee, and we ask that potential judge whether he will be devoted to the Constitution or not, we must ask the question correctly: “Do you believe in severely-limited government; will you honor your oath to keep the power of government from expanding… and where it has already expanded unconstitutionally, will you use the power of your office to properly rein it in?”
This is the purpose of every presidential appointee. They are there to perform the functions of government, which acting as a permanent brake on government expansion. Any potential appointee – of any party – who does not share that commitment has no business serving anywhere in the United States government.
The First Presidency
The Founding Fathers wisely selected George Washington to be the first President under the Constitution. He was, arguably, the most experienced statesman in the country, having served as a legislator for 20 years, as one of the most successful businessmen in the country, as commander in chief of the military, and as president of the Constitutional Convention itself; nobody else could better follow the conventioneers’ intentions for the office.
President Washington had many specific policy positions, a thousand thoughts about the philosophy of government and about the best choices for America as our country moved out of depression and into prosperity as a nation of its own. But every position he took, every choice he made, was first governed by the question: “Is it Constitutional?”
His Treasury Secretary, Alexander Hamilton, proposed a federally chartered bank; it made sense, and Congress passed the measure. But there was a question: was it Constitutional? Not until President Washington was satisfied that the move was within Constitutional limits did he sign the bill.
In 1795, President Washington appointed his old acquaintance John Rutledge to the Supreme Court. Unaware of Rutledge’s recent illness, he thought it was a safe appointment, but the Senate knew better. Aware of Rutledge’s mental illness (his depression was to become suicidal soon thereafter), the Senate wisely rejected this appointment.
Earlier, in 1790, President Washington appointed Senator William Paterson to the Supreme Court. A fine appointment, the move would have appeared to make sense, but members of the Senate remembered a provision that disallowed a congressman from benefiting from legislation on which he had voted during the same term of office… so the Senate wisely encouraged the President to withdraw the nomination. Today, we might think that was just a technicality, but in those days, they honored the law… and recognized the importance of ensuring that legislators cannot pass bills to create jobs for themselves.
Perhaps the best example from the Washington era is the case of The Chancellor, Robert R. Livingston of New York, who sought an appointment in the new administration from his old friend, now the President. They had been allies for decades, and in fact, Chancellor Livingston had administered the Oath of Office to Washington at his inauguration.
But Washington was committed to the principle that appointments must not be based on personal friendships and alliances, but rather on who would be the best man for the job – the most committed to the Constitutional limits on the office in question. Washington hated to do it, but he turned down his old friend, and gave the job to someone else – someone whom Washington did not know as well, but who Washington believed was the right man for the job. (Livingston, bitter at the rejection, ended up leaving the Federalist side and joining with the Jeffersonians for the rest of his career.0
President Washington respected his Oath of Office, but it wasn’t a blind respect; it was a thoughtful appreciation of the underlying intention of the Constitution – the commitment to limited government, in every role, in every regulation, in every proclamation, in every appointee.
There is a reason why the vast majority of Washington’s appointments were approved: the Senate knew that George Washington would appoint people whose very being embodied the spirit of Independence; he would appoint people who believed in limited government.
A Constitutional Crisis
Today, modern America faces a Constitutional crisis. The Constitutionally-imposed limitations on the growth of the Leviathan state have been breached, time and time again, so that the nation suffers under a government that now directly employs more people than there WERE in the country during the Founding era.
Successive governments have, for a century, expanded the size and breadth of government again and again, creating ever more agencies with limited functions, employing ever more administrators to expand those functions beyond the lines intended by the Founders.
Too many Senates have drunk the Kool-Aid of the theory that a president should be able to appoint his own people. And where has this spinelessness gotten us? Our judiciary is chock full of judges who create their own unconstitutional laws… our bureaucracy is chock full of agencies that regulate whole industries out of existence… and our educational system no longer even teaches the concept of Limited Government, because it’s been so long since our national elected officials have recognized Limited Government as the fundamental building block of our nation.
The time has come – in fact, the time is long since passed – for America to stand up for the Founders’ immortal vision again:
Our nation was founded on Limited Government, and every branch – Legislative, Judiciary and Executive – is hereby called upon to do their legal duty to start the shrinking process, TODAY.
No more confirmations of judges, justices, secretaries, or department heads, unless their histories PROVE them to be committed to the cause of limited government. No more passage of tax bills, spending bills, or treaties that grow the government; no more bills of any kind that do anything but turn back in the right direction and LIMIT this Leviathan again.
The Leviathan’s strong arms and jackboots have been growing for a century, and we cannot wait until January 20, 2017 to stop the bleeding.
We must nominate Constitutionalists in the primaries, elect Constitutionalists in the generals, reject non-Constitutionalist nominees at every level, and start rolling back the creeping socialism of the 20th and 21st centuries.
Barack Hussein Obama has another year to keep violating his oath of office; the rest of government must spend this year fighting that illegal tyranny at every turn. And if that means beginning with another un-American nominee to the Supreme Court, then so be it.
The president only has a right to appoint people to government offices who would obey the Founding principles. Any other appointee must be rejected.
Copyright 2016 John F. Di Leo
John F. Di Leo is a Customs broker and trade compliance trainer, and a former county chairman of the Milwaukee County Republican Party.
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