2.5—Checks on the Presidency

Congress, and more specifically the Senate, is empowered by the Constitution to check the powers of the presidency. This section specifically looks at the ways in which the Senate checks some of the appointments a president makes in filling key positions within the government.

What you need to learn

How does the Senate place checks on presidential power?

Vocab

advise and consent &

borking

Presidential Appointments

ambassadors

white house staff positions

presidential cabinet members

federal & supreme court appointments

2.5 Checks on the Presidency

The president’s formal powers enable him to appoint a team to execute the laws and to accomplish his policy agenda. Some of those administrators hold positions Congress created in 1789. Many more subordinate positions exist because Congress has since created them or has allotted funds for offices to support the president. A typical president will appoint thousands of executive branch officials during their tenure. Atop that list are the Cabinet officials, then agency directors, military leaders and commissioned officers, and the support staff that work directly for the president. Most of these employees serve at the pleasure of the president, and some are kept on when a new president is elected. Other positions are protected by statute or Supreme Court decisions.

The President’s Team

The president is faced with countless decisions each day, and many of those decisions have exceptionally important consequences to the fate of the nation. A large team is needed to assist the president in making these decisions. Article II, Section 2, of the Constitution gives the president the power to assemble that group and “… appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.”

The Vice President

A political party’s presidential nominee, in consultation with the party, selects a vice president before the election. Many assume the vice president is the second most powerful governmental officer in the United States, but in reality, the vice president is an assistant to the president with little influence and a largely undefined job description. Different presidents have given their vice presidents differing degrees of authority and assigned them different roles.

The Constitution names the vice president as the president of the Senate and declares that in case of presidential removal, death, resignation, or inability, the president’s duties and powers “shall devolve on the vice president.”

Shaping and Supporting Policy

In recent years, the position has been especially influential on presidential policy. Many believed George W. Bush’s vice president, Dick Cheney, a hawkish former defense secretary, was overly influential. He promoted a tough stance on terrorists and also toward nations that harbor them. He pushed for the 2003 invasion of Iraq in search of “weapons of mass destruction,” but none were found.

Vice President Joe Biden, serving under Obama, sustained his high influence for eight years. Obama assigned several policy goals to the affable former senator who had served in Washington since the 1970s. Biden focused on concluding the mission in Iraq and gained budget deals with Republican congressional leaders. The president gave “Uncle Joe” a presidential medal of freedom and called him “the best vice president America has ever had.”

In 2020, after the global coronavirus pandemic upended life around the world and cost thousands of people their lives, President Trump appointed his vice president, Mike Pence, to coordinate the nation’s response. Pence called upon the globally recognized expert on infectious disease, Dr. Dorothy Birx, to recommend policy based on scientific predictions of how the disease would spread.

The Cabinet and Bureaucracy

Article II alludes to a Cabinet when it mentions “the principal officers in each of the executive departments.” Today, 15 Cabinet secretaries, such as the secretary of defense and secretary of transportation, advise the president, but they spend even more time running large governmental departments that take care of a wide range of national concerns. Presidents can add additional members to the Cabinet. President Joseph Biden included eight additional positions beyond the vice president and department secretaries.

Secretaries

When appointing Cabinet secretaries, modern presidents create some balance based on geography, gender, ethnicity, and even partisan ideology. Presidents have found showcasing minority appointments and stocking their team with a visible, diverse staff to be in the interest of accomplishing their agendas.

Franklin Roosevelt (1933-1945) appointed the first woman to the Cabinet, Secretary of Labor Francis Perkins, and Lyndon Johnson (1963-1969) appointed the first African American, Secretary of Housing and Urban Development Robert Weaver. This tokenism—or mainly symbolic appointment of a small number of underrepresented groups to give the impression of diversity—continued until President Jimmy Carter appointed substantial numbers of African Americans and women to his senior executive positions—16 percent women and 11 percent ethnic minorities. President Biden’s cabinet has 13 men and 11 women—including 10 officials who are minorities or people of color. Pete Buttigieg, 2020 Democratic presidential candidate, is the first openly gay Cabinet member serving as Biden’s Secretary of Transportation.

State Department

The first department Congress created in 1789 was the Department of State, headed by Thomas Jefferson. Its role is to promote the foreign policy of the United States across the globe. The State Department is the president’s main diplomatic body. Deputy secretaries oversee U.S. relations in designated regions or continents. For each nation that the United States recognizes (nearly every nation in the world), the State Department operates an embassy in that country and employs an ambassador, a top diplomat appointed to represent the United States with that foreign nation. That country will likely have an embassy in Washington. About two-thirds of U.S. ambassadors come from careers in foreign affairs or are international experts. About one-third are political appointees—former senators, political friends, or well-known Americans to impress the host country.

Defense Department

The Defense Department is headquartered at the Pentagon, just outside the nation’s capital. Secretaries of defense are civilian officers who serve the president and have not served in the uniformed military service for at least seven years. The Constitution and U.S. tradition dictate that the military leadership and policymaking apparatus be distinct and separate from the uniformed divisions that carry out military missions. Ultimately, the people run the military through their elected and constitutional civil officers, in contrast to many dictatorships. Dictatorships, lacking constitutional protections, come into being when a strong military leader takes over the military first and the government second.

The Defense Department includes the Army, Navy, Air Force, and Marines—all of the nation’s military branches under one command. The Joint Chiefs of Staff, a council of the top uniformed officials from each division, advises the president on military strategy. Defense comprises about one-fifth of the overall federal budget and the largest portion of the nation’s discretionary spending.

Federal Agencies

Federal agencies are subcabinet entities that carry out specific government functions. Many fall under larger departments. For example, the Federal Bureau of Investigation (FBI), a crime-fighting organization, falls under the Justice Department. The Coast Guard falls under the Department of Homeland Security. Other agencies include the Food and Drug Administration (FDA), the Internal Revenue Service (IRS), the Central Intelligence Agency (CIA), and the Postal Service. Thousands of people in Washington and across the country staff these few hundred executive branch agencies. They carry out laws Congress has passed with funds Congress has allotted.

President’s Immediate Staff

In 2008, 74 separate policy offices and 6,574 total employees worked for the president (most not working in the White House). Ideally, all of the offices and agencies play a part in implementing the president’s policy goals.

The Executive Office of the President (EOP) operates within walking distance of the White House. It coordinates several independent agencies that carry out presidential duties and handle the budget, the economy, and staffing across the bureaucracy. Created in 1939 when FDR needed an expanded presidential staff, the EOP now includes the Office of Management and Budget, the Central Intelligence Agency, the Council of Economic Advisers, and other agencies.

White House Staff

The president’s immediate staff of specialists make up the White House Office. These staffers require no Senate approval and tend to come from the president’s inner circle or campaign team. They generally operate in the West Wing of the building. Presidents sometimes come to rely on their White House staffs more than their Cabinet or agency heads because staff members serve the president directly. Unlike secretaries, they do not have loyalties to departments or agencies and do not compete for funding. The staff interacts and travels with the president daily, and many staffers have worked with prior presidents. A staffer’s individual relationship with and access to the president will determine his or her influence.

In the 1950s, President Eisenhower’s chief of staff became his gatekeeper, responsible for the smooth operation of the White House and the swift and accurate flow of business, paper, and information. Though the chief of staff has no official policymaking power, a president seeks the chief of staff’s opinion on many issues, giving the position a great deal of influence. Chiefs of staff tend to be tough, punctual, detail-oriented managers, and these qualities allow the president to concentrate on big-picture decisions. Ron Klain served as chief of staff for then-Vice President Joe Biden and served in that role again after Biden became president.

The remainder of the president’s inner circle includes the top communicator to the people, the White House press secretary; the president’s chief legal counsel; and his national security adviser. The national security adviser coordinates information coming to the president from the CIA, the military, and the State Department to assess any security threat to the United States. This person heads the National Security Council that includes the president, secretaries of defense and state, top intelligence and uniformed military leaders, and a few others.

Interactions with Other Branches

Since Congress writes most laws, holds the federal purse, and confirms presidential appointments, presidents must stay in good graces with representatives and senators. The president’s agenda is not always Congress’s agenda, however, and tensions often arise between the branches. As chief legislator, the president directs the Office of Legislative Affairs to draft bills and assist the legislative process. Sometimes the aides employ techniques to push public opinion in a lawmaker’s home district in the direction of a desired presidential policy so that the lawmaker’s constituency can apply pressure. As the president enforces or administers the law, the courts determine if laws are broken, misapplied, or unjust. For these reasons, a president regularly interacts with the legislative and judicial branches.

Checks on Presidential Powers

The framers took seriously the concerns of the Anti-Federalists and included specific roles and several provisions to limit the powers of the future strong, singular leader.

The Senate has the power to provide advice and consent on appointments, for example, and the presidential salary is set by Congress and cannot increase or decrease during the elected term. The framers also expressly made the president subject to impeachment. (See Topic 1.6.) While some presidential powers, such as serving as Commander in Chief, appointing judges and ambassadors, and vetoing legislation, are explicit, presidents and scholars have argued about the gray areas of a president’s job description. Most presidents have claimed inherent powers, those that may not be explicitly listed but are nonetheless within the jurisdiction of the executive. This debate has taken place during nearly every administration when an emergency has arisen or when the Constitution doesn’t specifically address an emerging issue. Presidents have fought battles for expanded powers, winning some and losing others. The debate continues today.

The Senate and Presidential Appointees

In addition to the more visible Cabinet appointees, a president will appoint approximately 65,000 military leaders and about 2,000 civilian officials per two-year congressional term, most of whom are confirmed routinely, often approved en bloc, hundreds at a time. Occasionally, high-level appointees are subjected to Senate investigation and public hearing. Most are still approved, while a few will receive intense scrutiny and media attention, and some appointments will fail.

Because the founders did not anticipate that Congress would convene as frequently as it does in modern times, they provided for recess appointments. If the Senate is not in session when a vacancy arises, the president can appoint a replacement who will serve until the Senate reconvenes and votes on that official. This recess appointment is particularly necessary if the appointee is to handle urgent or sensitive work. This situation is rare, especially when the government is divided. Often a pro forma, or “in form only,” session will be called to ensure the Senate technically remains in session. These sessions often last only a few minutes.

The Senate invariably accepts presidential Cabinet nominations. The upper house swiftly confirmed every Cabinet-level secretary until 1834, when it rejected Andrew Jackson’s appointee, Roger Taney, as secretary of the treasury over Taney’s opposition to a national bank. The makeup of the Senate changed with the next election and Jackson appointed Taney as chief justice of the Supreme Court, who was confirmed for the position by a slim margin. To date, the Senate has rejected, by vote, only nine department secretaries.

The Senate usually accepts Cabinet appointees based on the reasoning that since the president won a democratic election, he should therefore have the prerogative of shaping the administration. Presidents commonly choose senators to move over to the executive branch and serve in their Cabinet. In recent years, the president has selected one or more members of the opposite party. President Obama named three Republicans to serve as secretaries (though one declined the offer). Presidents and their transition teams do a considerable amount of vetting of potential nominees and connecting with senators to evaluate their chances before making official nominations. Though only nine nominations have been rejected by vote, 13 Cabinet appointees withdrew before the Senate voted. Additional names have been floated among senators, but they didn’t receive the support to justify the official nomination.

Senate Standoffs

The two most recent standoffs on Cabinet appointments came in 1989 and in 2017. President George H. W. Bush named former Senator John Tower as secretary of defense, and President Donald J. Trump nominated Betsy DeVos as secretary of education. Senator Tower had served in the Senate since Lyndon Johnson vacated the seat to become vice-president. Tower had the resume and experience to serve as defense secretary. He served in World War II and later as the chairman of the Senate Armed Services Committee. Upon his nomination, even Democratic Party leaders anticipated his nomination would sail through. However, allegations of heavy drinking and “womanizing” surfaced. Additionally, Tower owned stock in corporations with potential future defense contracts, an obvious conflict of interest. President Bush stuck by his former congressional colleague (Bush had represented Texas in the House). In the end, the Senate voted Tower down 53 to 47.

In 2017, President Trump nominated Betsy DeVos as education secretary. Like some conservatives, she held interest in privatizing education and, if confirmed, she would pursue that agenda goal. Despite DeVos advocating for private schools for many years before her nomination, she had never worked in public schooling in any capacity, including as a teacher, and along with her billionaire husband she had invested in for-profit charter schools and pushed for online education. The educational community was generally against her nomination, with some exceptions. At her public confirmation hearing, many senators expressed concern about her priorities, her experience, and her high-dollar donations to Republican candidates. As she fielded questions before the Senate committee, her competence in the field seemed shaky. Exchanges on school choice, guns in schools, students with disabilities, and private or online school accountability raised eyebrows on Capitol Hill and in news reports that followed. In the end, two Republican senators voted against her, leaving

the Senate in a dead tie. Vice President Pence’s tie-breaking vote made DeVos the secretary of education.

Ambassador Appointments

The Senate is also likely to confirm ambassador appointments, although those positions are often awarded to people who helped fund the president’s campaign rather than people well qualified for the job. On one of the “Nixon Tapes” from 1971, Nixon tells his chief of staff that “anybody who wants to be an ambassador must at least give $250,000.” About 30 percent of ambassadors are political appointees. Some may have little or no experience to qualify them, though they are rarely rejected by the Senate.

Businessman Donald Trump fired people from the reality television show The Apprentice much like President Trump dismissed his appointees and shifted his underlings around. He deliberately left administrative positions empty with “acting” or temporary appointees for long periods of time. In a 2019 interview, President Trump stated, “I like acting [appointees] because I can move so quickly.” A study by Christina Kinane found that one-fourth of all acting officials between 1977 to 2019 served under President Trump, and the study concluded only midway through his presidency.

Removal

The president can remove upper-level executive branch officials at will, except those that head independent regulatory agencies. (See Topic 2.13.) A president’s power of removal has been the subject of debate since the writing of the Constitution. Alexander Hamilton argued that the Senate should, under its advice and consent power, have a role in the removal of appointed officials. James Madison, however, argued that to effectively administer the government, the president must retain full control of subordinates. The Article II phrase that grants the president the power to “take care that the laws be faithfully executed” suggests the president has hierarchical authority over secretaries, ambassadors, and other administrators. This issue brought Congress and the president to a major conflict in the aftermath of the Civil War. President Andrew Johnson dismissed Secretary of War Edwin Stanton, congressional Republicans argued, in violation of the Tenure of Office Act. This action led to Johnson’s impeachment.

The question of removal resurfaced in 1926. The Supreme Court concluded that presidential appointees “serve at the pleasure of the president.” The Court tightened this view a few years later when it looked at a case in which the president had fired a regulatory agency director. The Court ruled in that case that a president can dismiss the head of a regulatory bureau or commission but only upon showing cause, explaining the reason for the dismissal. The two decisions collectively define the president’s authority: executive branch appointees serve at the pleasure of the president, except regulatory heads, whom the president can remove with explanation.

Judicial Interactions

Presidents interact with the judiciary in a few ways. As the head of the executive branch, presidents enforce judicial orders. For example, when the Supreme Court ruled in 1957 that Central High had to admit nine African American students into the school, President Eisenhower ordered the 101st Airborne Division into Little Rock, Arkansas, to ensure the school followed the court order. The branches also interact when courts check the executive if they find presidential action unconstitutional. For example, in 1952 the Supreme Court overturned President Truman’s decision to nationalize steel industries during the Korean War. Truman had taken that step to mobilize resources for the Korean War and also to prevent a strike by steelworkers. The Court ruled, however, that the president lacked authority to seize private property.

In 2014, President Obama announced an executive order that would delay the deportation of millions of illegal immigrants. The order was met with strong opposition from Republicans. By the end of the year, 26 states, led by Texas, took legal action to stop Obama’s plan. The case made it to the Supreme Court, and a 4-4 split affirmed a lower court injunction, ultimately blocking Obama’s order. It was an eight-member Court due to the death of Justice Antonin Scalia.

Judicial Appointments

A more frequent encounter of the two branches comes when presidents appoint federal judges. All federal judges serve for life terms, so only a fraction of the federal courts will have openings during a president’s time in office. Yet presidents see this opportunity as a way to put like-minded men and women on federal benches across the country. Of course, like appointments in the executive branch, the Senate must approve these nominees.

While standoffs about Cabinet appointees are rare, judicial nominations are another story. Judges have a greater influence on shaping the law and can serve for life, so there is more at stake. The president appoints scores of federal judges during each four-year term because, in addition to the nine justices on the Supreme Court, nearly 1,000 federal judges serve the other federal courts. Throughout U.S. history, 30 Supreme Court nominees have been rejected by a Senate vote. Many other lower court nominees have also been rejected or delayed to the point of giving up on the job.

The interaction between the branches on these judicial nominees is complicated and sometimes contentious. Senate rules and traditions govern the process. Senators, especially those on the Judiciary Committee, expect to advise presidents on selecting these nominees and are sometimes slow to consent to the president’s choices. They, too, realize the longevity of a federal judge’s service. If the president appoints like-minded judges, senators on the opposite end of the ideological spectrum are unlikely to welcome the judges, since their future decisions could define controversial or unclear law.

A divided electorate has caused majority control of the Senate to shift from one party to the other, and the cloture motion has served a somewhat stabilizing function. (See Topic 2.2.) According to a 2013 decision, if a senator wants to block a judicial nomination with a filibuster, only a simple majority of senators would be required to prevent that.