Fifteen months into Trump’s presidency, key positions at the White House remain unfulfilled. It was reported last month that of the top 640 jobs that require Senate confirmation, fewer than half — 275 — have been confirmed and are on the job.
Additionally, Trump’s personnel office “has fewer than a fourth the number of staffers to process paperwork and interview applicants. Several of the offices at the personnel department are empty most of the day.” Forty-three percent of Trump’s most senior staffers had quit, switched roles or were forced out since his inauguration. Without knowledgeable people filling these essential offices, would our government be able to react speedily and efficiently if a crisis were to erupt? That is a haunting thought.
Trump has previously said that he is deliberately leaving many positions open, in an effort to “drain the swamp.” Nevertheless, regardless of the veracity and merits of this statement, we have to ask:
Is the failure to fill key government positions unconstitutional?
There are two parts of the Constitution that might shed a light on this question.
- The Appointments Clause
Here’s what the Appointments Clause of the Constitution (Art. II, Section 2) says: “…[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
What does that mean?
First, we need to figure out whether the word “shall” is a suggestion (i.e. the president should nominate such officers) or an order (the president has to appoint them). As with any interpretative constitutional question, you can find arguments on both sides. Nonetheless, the Supreme Court has recently interpreted statutes with the word “shall” as more of an obligation than a suggestion.
Either way, the President can have his own interpretation of the Constitution. But he has not expressed his view to the American people. If he thinks the Appointments Clause is merely suggesting him to appoint certain officers, shouldn’t he at least state so?
After all, this is not only the President’s call. The Appointments Clause involves Congress in the appointment process. That is actually why Congress has acted under the authority of this clause and created important executive offices. For some of these officers, Congress has required in the statutes that the President fill them (“shall”) while filling others might be discretionary. But the mandatory ones are statutory obligations that require the President to fill those offices.
- “Take Care” Clause
Additionally, Article II requires the President to “take care that the laws be faithfully executed.” So why hasn’t the President filled the vacancies of the executive offices that Congress has instructed him to fill? Is “shall” really an obligation? Assuming it is, the President must Constitutionally fill those vacancies or else he is neglecting his constitutional duty to “take care” that the “laws be faithfully executed.”
What do you think?