Commentary Magazine


Topic: separation of powers

Antonio Weiss, Elizabeth Warren, and the Spirit of the Constitution

When Elizabeth Warren led a campaign of misleading demagoguery against President Obama’s nominee for an under secretary of the treasury job, she was trying to make a point at the expense of someone else’s career. But since her success was temporary and Antonio Weiss has, as predicted, joined the administration anyway, Warren’s populist stunt has inadvertently raised questions about the entire premise of the Senate’s role in approving executive branch nominees.

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When Elizabeth Warren led a campaign of misleading demagoguery against President Obama’s nominee for an under secretary of the treasury job, she was trying to make a point at the expense of someone else’s career. But since her success was temporary and Antonio Weiss has, as predicted, joined the administration anyway, Warren’s populist stunt has inadvertently raised questions about the entire premise of the Senate’s role in approving executive branch nominees.

To recap: Obama chose Weiss, but his background in investment banking irked Warren, who loudly opposed the nomination in ways that proved her ignorance of the relevant issues but increased her celebrity and her rabid fan base. It was precisely the type of behavior that should not be rewarded, but unfortunately it’s also the type of behavior that works. So Weiss withdrew his nomination.

But that was not going to be the end of it. Here is what I wrote last month about how this would end: “Weiss will join the Treasury anyway, and give the same advice, not be much undercut by whoever eventually fills the under secretary seat. … Warren’s victory is, then, entirely symbolic. It will have no effect on policy. All it will do is act as an implicit threat to future nominees, pour encourager les autres.”

And that’s precisely what happened. As Bloomberg reports:

Eight days after joining the Treasury Department as an adviser, Antonio Weiss was the lead U.S. official listed at a meeting with Wall Street executives. It’s a role typically played by the undersecretary for domestic finance — the same post Weiss lost after Democratic senators stymied his nomination.

Weiss’s presence at that Feb. 3 meeting on quarterly debt sales shows him diving into many of the same tasks that would have come with the undersecretary’s job. The former Lazard Ltd. global head of investment banking is now working on issues ranging from debt management to housing finance and global market developments. One big difference: his job as counselor to Secretary Jacob J. Lew doesn’t require Senate confirmation.

The question–and it’s a fair one–is this: Does Antonio Weiss’s current job description violate the spirit of the separation of powers and the Senate’s advise-and-consent role in executive branch appointments?

Over at National Review, Charles Cooke says yes. Cooke writes that quality of candidate–and, by extension, the truthiness of the campaign against him–is beside the point: “Ultimately, I couldn’t care less whether Weiss is a better choice than Elizabeth Warren’s preferred candidate. If the Senate didn’t want him, he doesn’t get the job.”

He explains:

At first blush it must seem rather suspicious that the only functional difference between Weiss as undersecretary for domestic finance and Weiss as counselor to Secretary Lew is that the latter position “doesn’t require” the Senate confirmation that Weiss was so publicly denied. But first blushes are for schoolboys and bigots and haters, and for those wild-eyed radicals who would happily risk seeing into what sort of proto-Somalian hellhole the United States might fall if the Treasury secretary were to be denied an adviser for a few weeks. Here, as so often, we should presume that the president knows better than the other co-equal branches, and conclude that politics must not be permitted to intrude upon his getting his own way. Apologies to Elizabeth Warren and Dick Durbin, who made it their business to block Weiss’s nomination; but you know not what you do.

I support Cooke’s general defense of procedure here, but I don’t think it’s being violated in this case, for three reasons.

The first is that process matters. There is no way to prevent a government official from soliciting the advice he’s looking for. Having a Senate-confirmed spot in government is about more than hiring. It’s why it’s not inappropriate that Susan Rice landed at the exceptionally powerful National Security Council when opposition to her from the Senate chased the administration away from making her secretary of state. Yes, it’s a different job title, but so is Weiss’s. And since policy is made in the White House, Rice is arguably more influential toward the shape of American foreign policy as national security advisor than she would have been at State.

The second is that the purpose of the opposition matters. The truth is that Rice would likely have been confirmed. The problem for Obama was that Republicans wanted to use the confirmation hearings to press the administration (and especially Rice) on Benghazi. For Weiss, it wasn’t clear Warren had the votes to reject his nomination. What she wanted was to make a point about the administration’s supposedly too-cozy ties to Wall Street and demonstrate her growing clout in the Democratic Party. So yes, Weiss was hired this way to avoid the Senate’s “advice and consent” (mostly “advice”), but neither is it fully accurate to say that, in this case as in many others like it, “the Senate didn’t want him.”

The third reason is that you could say the same about recess appointments. But wait, you object, the recess power is in the Constitution! Indeed it is. And what is its purpose? If the purpose is to prevent debilitating vacancies while the Senate is out of session, then its popular use today unquestionably violates the spirit of that process.

Presidents use recess appointments for controversial nominees who would be otherwise “unconfirmable” by the Senate. Does this not trash the very concept of the Senate’s role in choosing nominees? If we follow this line of thinking, we should oppose any appointment that would otherwise go through the Senate. (Cooke may in fact agree; I’m not claiming to know, merely making a broader point.)

And if the spirit of the Constitution is not violated by recess appointments made for this purpose, then the case for Weiss is even stronger. We can then say that the framers allowed for the workaround in cases other than coincidental recess.

And we might glance at the way presidents choose their advisors for some perspective. If we must oppose Weiss’s hiring in this case for these reasons, then we might as well indict the executive branch’s general conduct in foreign policy. Was the diplomatic opening to Cuba arranged by the American secretary of state or even Foggy Bottom appointees? No it was not; it was arranged by presidential advisor (and Susan Rice deputy) Ben Rhodes, whose position is not subject to Senate confirmation. And we could say the same about the entire system of “special envoys” through which presidents approach foreign affairs.

There is a danger here, without question. And the growth of the administrative state and its army of unaccountable bureaucrats would surely horrify the framers, for a variety of reasons. But Weiss’s hiring is probably not one of them.

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The President Versus the Constitution

Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

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Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

Democrats may have a point when they claim Boehner’s lawsuit is more of a stunt than a policy initiative. It is doubtful that the courts will force the president’s hand when it comes to bypassing Congress on immigration by selective enforcement of laws or by the use of executive orders when the House and the Senate fail to pass the legislation he wants. Even if the case does go forward, the odds are it will not be resolved until after President Obama leaves office in January 2017.

But Boehner is right to stand up for the Constitution and a system of checks and balances and against Obama’s notions of an imperial presidency that increasingly seem aimed at allowing him to govern alone without Congress.

Thus, the Supreme Court’s willingness in National Labor Relations Board v. Noel Canning to put some limits on the president’s power to make recess appointments is an encouraging sign that the march to one-person rule can be checked if not altogether halted.

As our John Steele Gordon noted earlier, the practice of allowing recess appointments, including those for vacancies that arise while Congress is in session, is not authorized by the Constitution but has become routine in the last century. While properly ruling that President Obama’s appointments to the National Labor Relations Board were illegal, the majority of the court sought to curb what it believes to be an excessive use of the practice. The decision held that congressional breaks of less than 10 days could not be interpreted as being sufficient to justify the president invoking his recess appointment power. That’s reasonable, but as Justice Antonin Scalia noted in his concurring opinion, by also saying that such appointments would be legal even if they came in the middle of an existing session, the court has read the law in such a way as to still leave the president far too much leeway to abuse the Constitution. The Constitution only authorizes the executive to make such an appointment when a vacancy comes up during an actual recess, not every such opening including ones that date back to times when Congress is in session.

As Scalia writes:

The notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting. But that, in the majority’s view, is what the text authorizes.

Though he concurred with the majority that the NLRB appointments were illegal, Scalia rightly points out that such unilateral actions by the president could only be approved under extraordinary circumstances. But no such circumstances applied to this case or, for that matter, just about any other recess appointment made by any president in recent decades.

It should be remembered that the concept of recess appointments stems from the political realities of government in pre-20th century America. With a few exceptions during periods of national emergency, prior to the Great Depression Congress met for only a few months every year. Recesses then were not matters of a few days or weeks but several months. Even when a special session of Congress was called, travel in the horse-and-buggy era meant that it was simply impossible for the legislative branch to assemble quickly. Vacancies that arose during this period could, if forced to wait for the Senate to exercise its right to advise and consent to appointments, mean the government simply couldn’t function.

The old schedule in which a newly elected Congress would not meet until the December of the following year and new presidents not be inaugurated until the middle of March is consigned to the dustbin of history. But so, too, should the practice of allowing the president to simply use brief breaks in what is, for all intents and purposes, a nearly continuous congressional session to make appointments that the Senate has already effectively rejected.

Under the ruling in today’s case, so long as either congressional body is in the hands of the party not in control of the White House, recess appointments may be impossible since pro forma sessions will prevent the president from arguing, as Obama did, that the legislature really is not meeting. But, as John Steel Gordon points out, the president will still have a loophole that would allow him to effectively prorogue Congress like an 17th century English monarch.

All this points out the necessity for those who care about the Constitution—be they Republicans or Democrats—to stand up against a lawless presidency intent on one-person rule. Though Democrats may think they will hold the White House for the foreseeable future, they must consider that three years from now they may be faced with a Republican president. That president will, like all of his or her predecessors including Obama, probably suddenly find themselves in love with the idea of an imperial presidency that they disdained when someone of the other party was in power.

If this trend is allowed to continue unchecked and Obama’s predecessors are allowed to build on his precedent, then there is no telling how long the Constitution, as we know it, will survive. Presidents who enforce only the laws they like and use executive orders to make laws or make appointments the Congress has already rejected are little different from kings and queens.

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