Unconfirmed and Unaccountable: Trump’s Embrace of Acting Agency Heads Erodes Democracy by Nicholas Bornstein
Just over a month ago, President Donald Trump remarked to a group of reporters that, “…my actings are doing really great… I sort of like ‘acting’. It gives me more flexibility; do you understand that?”. The “actings” he referred to include Acting Attorney General Matt Whitaker, Acting Secretary of Defense Patrick Shanahan, and a collection of other Cabinet heads who have not been confirmed to their current posts by the U.S. Senate. While fears regarding the American president’s effect on democracy were widespread during the campaign, many institutions including our independent judiciary and free press have remained strong. However, the federal bureaucracy has been threatened as President Trump continually violates one specific democratic norm: senatorial advice and consent of Cabinet officials.
After firing Attorney General Sessions, Defense Secretary Mattis, and others, the President unilaterally installed acting agency heads, who have remained in place months after the vacancies opened. Trump has shown no regard for the Constitution’s appointments clause, which states that Cabinet officials are nominated and then confirmed with “advice and consent of the Senate”. The American president’s nonchalance towards this responsibility left in place unaccountable, unconfirmed bureaucrats with unusually strong loyalty to the president. Allowing these acting officials to serve for extended periods erodes American democracy, strips the legislature of its constitutional authority, and limits the role of constituent influence on government, all while increasing the President’s autonomy over the bureaucracy.
By Robert Dahl’s definition, democracy’s “key characteristic” is government responsiveness to the preferences of the nation’s citizens. The existing process by which agency heads are nominated and confirmed provides a role for the citizenry to have their preferences heard. Whether via written correspondence or over the phone, constituents frequently make their feelings on the merits of Cabinet nominees known. After Trump’s election, the scrutiny of these selections and their nomination hearings skyrocketed, with citizens nationwide flooding Senate offices with calls raising concerns. The constituent pressure on Senators to oppose Betsy DeVos as Secretary of Education was so great that two Republicans crossed the aisle to oppose her confirmation, forcing the Vice President to be called to the Senate floor to break a tie on a Cabinet official’s nomination for the first time in American history. Trump’s penchant for acting agency heads has totally eroded this element of citizen input, and deters legislators from responding to citizen preferences.
After firing Attorney General Sessions last year, President Trump appointed Matt Whitaker, an unconfirmed Justice Department official and critic of the Special Counsel investigation into the President’s campaign, to serve as Acting Attorney General. This choice circumvented the natural chain of succession, which pointed to Deputy Attorney General Rod Rosenstein, a supporter of the investigation, taking control of the Justice Department. While Trump claimed that he had the legal standing to make this maneuver under the Federal Vacancies Reform Act, that law addresses vacancies created by resignations – not firings. Whether or not Sessions resigned or was fired remains unclear, but without a definitive answer, the constitutionality of Trump’s action cannot be determined. As Levitsky and Ziblatt warn in How Democracies Die, competing interpretations of a constitution can be exploited for political gain, and Trump’s legal team did so in order to justify Whitaker’s appointment. Legal or not, President Trump was able to install an official with the power to end an investigation into him without any input from Congress or the American people.
Trump crucially pacified political elites by pledging to nominate replacements for these acting heads, and in some cases, following through. Levitsky and Ziblatt discuss the role of political elites in dealing with an actor who refuses to play by the rules of democracy. In the case of Whitaker, Trump ensured that elites would not respond to this challenge by nominating a member of the Republican establishment to serve as permanent Attorney General. The President’s nomination of William Barr, Attorney General under George Bush, secured the silence of congressional Republicans who could have raised concerns over the legality of Whitaker’s appointment and the usurpation of their right to “advice and consent”. Senate Republicans responded to a challenge to democracy by allowing an unconfirmed official to oversee investigations he had once publicly ridiculed in exchange for the promise that a reliable, respected nominee would succeed him.
Having faced no consequences for his violation of this democratic norm (and possibly the law), Trump again replaced a confirmed Cabinet official with a loyalist serving in an acting capacity. Two days before Christmas, Trump announced that Defense Secretary James Mattis would be replaced by his Deputy, former Boeing lobbyist Patrick Shanahan, effective New Year’s Day. As he did with Whitaker, Trump took an action in line with Huq and Ginsburg’s concept of constitutional retrogression. By forcing out career civil servants, Trump undermines bureaucratic autonomy and further centralizes the Cabinet departments that are not designed to be mere extensions of the White House. Unlike with Whitaker, however, President Trump has failed to nominated a permanent replacement for Mattis, even suggesting that he would leave Shanahan in place with the acting title indefinitely because he was, “doing a great job!”.
The theory of agent-based democratic erosion posited by Lust and Waldner best explains Trump’s corrosive actions. Considering his background and aggressive temperament, it is unsurprising that he has struggled to delegate authority. Though Mr. Trump grew accustomed to loyalty from his subordinates as a business tycoon, as President he was met with a legion of civil servants committed to serving the nation rather than serving him personally. Trump’s installation of Cabinet heads who will put service to the President first is merely an effort to recreate the level of loyalty he had previously enjoyed. While our political system is structured so that no single person, even a chief executive, is all-powerful, running the Trump Organization meant exactly that. Such absolute autonomy is incompatible with our democratic system of checks and balances. The President’s embrace of acting agency heads over permanent ones sets a dangerous precedent, and furthers the erosion of our democracy.
*Photo by Chip Somodevilla, Getty Images