The Framers established the requirement for Senate advice and consent to presidential nominations to safeguard democracy from a “despotic” president. As the Supreme Court explained in Freytag v. Commissioner of Internal Revenue, the “power to appoint officers” was the “most insidious weapon of 18th-century despotism.”
Justice Antonin Scalia echoed this theme in NLRB v. Noel Canning, the leading (and unanimously decided) case on appointments made during congressional recesses. Former Justice David Souter similarly pointed out that the Senate’s power to disapprove nominees limits presidential “wrongdoing” by checking “arbitrary power” in Weiss v. United States.
In NLRB v. Southwest General, Justice Clarence Thomas cited the “serious risk for abuse and corruption posed by permitting one person to fill every office of the government.” He explained that the Framers had “lived under a form of government” that did not check arbitrary exercises of executive power. They realized that “liberty could only be preserved by ensuring that the powers of government could never be consolidated in one body.”
Speaker Mike Johnson (R-La.), however, has indicated that the Senate should abandon its vital checking function, allowing “the president to put persons in his Cabinet of his choosing.” But the Framers rejected a proposal to allow the president to appoint his Cabinet unilaterally, precisely because it might occasionally prove necessary to prevent a president from appointing unsuitable nominees.
Alexander Hamilton explained in the Federalist Papers how denying the president a unilateral appointment right prevents “despotism.” It does so by preventing the appointment of officers with the “pliancy” to be “obsequious instruments of [the president’s] pleasure.”
The reason for this is obvious. An officer who would obsequiously follow presidential orders might obey illegal orders or employ his authority to aid presidential allies and persecute his political opponents.
Johnson went on to justify his call for the Senate to abandon its constitutional duties by citing the need to carry out the president’s agenda. At the founding, presidents did not even campaign for office, let alone articulate an agenda. They were intended to serve as the republic’s “chief magistrate,” faithfully executing laws passed by Congress.
Of course, presidents now propose policy agendas. But these campaign promises, in a constitutional democracy, consist largely of proposals for Congress, which has the authority to create new policies. To allow a president to carry out a policy agenda by appointing fanatics without changes in legislation would be to establish a dictatorship.
The Constitution contains many mechanisms to prevent arbitrary power and preserve the rule of law, which further buttress the importance of vigorous Senate review of presidential nominees. The Constitution broke with the monarchial tradition of having officers of the government swear allegiance to the head of state. Our Constitution requires allegiance, not to the president, but to the law. It requires all the officers of the government, including the president, to swear an oath to obey the Constitution.
This oath requires them to disobey presidential orders if a president orders them to disobey the law or abuse their powers to harass innocent individuals, companies, or states. Allowing the appointment of officers who cannot be counted on to disobey unconstitutional orders destroys the Framers’ scheme for preserving democracy.
Johnson suggested that if the Senate objects to Trump’s appointments, it might be appropriate to have the Senate take a recess to allow Trump to assume the power the Framers explicitly denied him, to appoint officers unilaterally.
The Constitution contains a recess appointments clause authorizing unilateral appointments during a Senate recess. But as the Supreme Court pointed out in Noel Canning, that clause was not intended to allow the president to evade the advice and consent requirement.
Instead, the Framers recognized (during a time when Congress was often in recess and travel times much longer) that a vital office might become vacant at a time when the Senate could not approve a suitable nominee. The procedure was put in place as an emergency measure that might be triggered by a cabinet member resigning or becoming ill during a recess. The Framers never intended the recess appointment to serve as a tool to allow an autocratic president to bypass Senate confirmation and create a dictatorship.
Johnson, thankfully, is not a member of the Senate. The Framers never envisioned the Senate as an agent of populist demagoguery. Instead, the Senate was to consist of statesmen capable of commanding respect from an entire state. Their enlarged views would permit them not to follow popular passions (that was for House) but to exercise temperance and deliberation.
Never before has the republic’s safety so clearly depended on the exercise of those virtues.
David M. Driesen is a university professor at Syracuse University and the author of “The Specter of Dictatorship: Judicial Enabling of Presidential Power” (Stanford University Press 2021).
