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Constraining the White House Staff

We live in a world where an increasing number of things that are supposed to be done by the Congress are done by the executive.  Treaties are supposed to be approved by the President with the ratification of two thirds of the Senate, but the President makes many agreements on his authority based on a variety of claims.  Legislation is supposed to be passed by Congress but agencies do most of the legislating through rulemaking.  And wrongdoing by executive officials is generally reviewed by executive officials rather than by congressional impeachment.  Some of these actions may be constitutional under the original meaning, but some are not.

Another way that the executive takes action that is supposed to be shared with Congress is through appointments.  The Constitution provides that appointments are to be made by the President with the advice and consent of the Senate, but the President often makes appointments on his own.  Sometimes this was done through a broad understanding of the Recess Appointments Clause (which a majority fo the Supreme Court accepted, but see here for what I regard as the better view).

At other times, the President makes unilateral appointments of the White House staff on the ground that these staff members – however important their positions seem to be – do not constitute officers of the United States under the Appointments Clause.  The reason is that these staff members are said merely to give advice, to engage in nonbinding conversations with officials, or to convey messages from the president to officials – actions that would not involve the exercise of substantial authority and therefore would not implicate the Appointments Clause under the Supreme Court case of Buckley v. Valeo.   The public policy problem is that the number of these White House staff members is growing and therefore the power of the federal government is increasingly exercised by people who have not secured the consent of the Senate.  Again, some of these actions concerning appointments may be constitutional under the original meaning and some may be unconstitutional. 

What can be done about this?  The simplest way to address it would be to pass a limit on appropriations to pay members of the White House staff.  This would be clearly constitutional and would limit the staff.  But the President would be likely to resist such legislation with a veto.

Another possible law that might be employed would be to limit the actions of the staff.  While the White House staff can communicate messages from the President to lower officials without being subject to the Appointments Clause, the White House staff cannot give orders to these officials, without being subject to the Appointments Clause.  Thus, Congress might prohibit any staff member from giving orders to such officials (and subject a violation of the prohibition to a civil or criminal sanction).  Perhaps Congress could go further.  They might believe that White House staff sometimes uses uncertainty about whether the President has issued an order as a means of exercising control over officials.  Therefore, they might require that the staff member make explicit, in each conversation, whether the advice/order is from the President, and make it a a civil or criminal violation to fail to do so (or to misrepresent the nature of the communication).  While the President might resist this law, it would probably be constitutional and would place limits on the power of the White House staff.

Reader Discussion

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on October 04, 2016 at 12:15:36 pm

Remember, that many of these appointees are *clever* lawyers; will they not find a way around the strictures.

Nope, best thing is "Cut the Funds"

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gabe
on October 04, 2016 at 15:54:07 pm

I would say that any White House Staff who are giving orders to other officers are themselves at least an officer and would require consent of the senate. Furthermore being a "Heads of Departments" under the constitution, a cabinet secretary can only be given orders by the president directly (cannot be given orders by anyone else or they wouldn't be a head of department and could not appoint lesser officers).

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Devin Watkins
on October 04, 2016 at 19:50:52 pm

Devin:

I'll take the liberty of quoting from your response to Adam White's essay on "Ten Ways to Limit....." on this blog as it may also be applicable here:

"Without the power to issue regulations, the presidency would not be in such a “challenging place” - AND neither would the Staff be so *challenging.*

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gabe
on October 07, 2016 at 21:59:30 pm

Interesting essay; Additionally, you paper titled, "The Original Meaning of the Recess Appointments Clause was also very interesting and your conclusions very compelling - they have convinced me that the Founders intended both the "Arise" meaning of Happen and Intersession Recesses.

Perhaps it is elementary and an implicit prerequisite to the understanding of the Recess Appointments Clause, but to me it seems meaningful to also consider why the Founders chose placed the Advice and Consent function with the Senate, rather than with the popularly elected House of Representatives.

It seems the Founders were nearly as, or as concerned with insuring a system of checks and balances not only between the three branches of the Federal Government, but between the Federal and State Governments (with a tilt in favor of the States) - to include giving the States a say in the appointments of superior positions in the administrative and diplomatic offices.

Not to be too expansive on the point, the heightened interest of the Founders to guarantee the States a significant role in the appointment process (through state legislature elected Senators) would support the notion that they would intend an interpretation that would limit the Presidents ability to make recess appointments - as you conclude, by meaning Arise and Inter-sessional.

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Paul Binotto
on October 08, 2016 at 11:42:56 am

I think you hit it on the head.

I find it useful to view the Original Senate as a body of States DIPLOMATS charged with assuring that the interests of their respective (and collective) States' interests were protected. surely, this would include a positive voice in the selection of "high" officials.

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gabe
on October 08, 2016 at 20:01:04 pm

Thank you - very interesting and useful way of looking at it, Mr. Gabe.

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Paul Binotto
on October 09, 2016 at 17:09:03 pm

I don't see how such restraints could be made practicably justiciable. If the Secretary of HHS got an uncomfortable phone call from the Director of the Domestic Policy Council, would he bring suit in an article 3 court? How does this NOT violate the unitary executive? And, since each of them serves at the president's pleasure, how long do you think the president would be pleased to have his appointees suing each other? Or is the Attorney General supposed to prosecute the offenders? This is a silly fantasy.

In practice, doubt can certainly arise regarding the degree to which White House staff are actually acting on the president's instructions, but this is a matter for the president and her chief of staff to address. Personnel in the agencies are perfectly capable of requesting clarification about a questionable instruction; as you might expect, the procedures for doing so tend to be more formal in national security channels than in the domestic policy channels. But this is no business of the courts. In the case of regulatory final actions, the courts will use APA standards to review the rulemaking record, which reflects both public comment and internal deliberations. But the courts do not and should not enquire into the who-said-what of the internal deliberations.

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Brian Mannix

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