Quick political quiz: Who are Tom Shannon, Adam Szubin, and Kenneth Hyatt?
Answer: Donald Trump’s first secretaries of state, the Treasury, and commerce.
Among many others, these three men served as “acting” members of Trump’s cabinet during the first weeks of his administration, as the president pondered permanent replacements. For reasons of partisan politeness, it is standard practice for the cabinet of the prior administration to resign en masse upon the inauguration of a new president, yet for some reason it’s considered no big deal for their deputies to hang around in their place for a while. This is how President Trump briefly got Obama appointee Sally Yates as his attorney general — and the ensuing consternation.
Once a president is more firmly ensconced, his secretaries may be fired or quit and be succeeded by a deputy chosen by the same president who appointed them. This is how we got our current acting secretary of the interior, Andrew Wheeler, the department’s Trump-appointed deputy secretary, who’s been serving since Scott Pruitt’s July 7 resignation.
For other offices, it’s apparently standard practice for presidents to unilaterally fill an empty cabinet seat with an acting secretary of their choosing, subject to certain restraints. Hence, Trump’s appointment last week of Matthew Whitaker to directly succeed departed attorney general Jeff Sessions.
Acting secretaries aren’t functionally much different from normal ones. They may be humbler in ambition, due to the nature of how they assumed office, but their powers are broadly indistinguishable. Acting attorney general Yates refused to offer Justice Department legal support to President Trump’s “travel ban,” a decision that presumably would have stood had Trump not proceeded to fire her. This past April, acting secretary of state John Sullivan, who briefly served between Rex Tillerson and Mike Pompeo, attended a G7 foreign ministers’ summit in Toronto and was welcomed as an equal by the other six. He participated in the round-table discussions and signed off on the ensuing communiqué.
Should America declare war tomorrow and James Mattis be hit by a bus the day after, our military strategies would be dictated by the acting secretary of defense — whoever that may be.
This is all very confusing, since cabinet appointments are supposed to be confirmed by the Senate. The Constitution’s Article II, Section 2, says that any principal “officer” of the United States can serve only with the advice and consent of the Senate, with “principal officer” understood to mean any person who reports directly to the president. A deputy secretary, by definition, does not meet this criterion, nor does any other subordinate. Yet for reasons of expediency, we long ago decided to interpret Section 2 in a fashion that allows inferior officers to transform into principal officers without the Senate’s having to raise a finger.
In a complex 2016 case that attempted to clarify the terms of a president’s power to appoint “acting” people, Clarence Thomas argued that acting appointments could not be justified by any logic found in the Constitution, only the logic of bureaucracy. Conceding that giving “the President unilateral power to fill vacancies in high offices might contribute to more efficient Government,” he nevertheless concluded that America “cannot cast aside the separation of powers and the Appointments Clause’s important check on executive power for the sake of administrative convenience or efficiency.”
This is the debate we should be having over acting attorney general Matthew Whitaker — not whether his appointment was kosher under the various dubious executive-branch succession laws Congress has dreamed up, but whether “acting” cabinet officers should be an understood part of American government at all.
Acting secretaries are a strange artifact of the American state’s top-heavy nature, the notion that the executive branch’s power to regulate, spend, dictate, and control is so essential that it cannot possibly afford to leave a single post unmanned for even a moment. No other branch of government guards its authority this jealously. There is no such thing as an “acting” congressman, senator, or Supreme Court justice. When vacancies occur due to death or abrupt resignation in those institutions, an expedient but methodical replacement process occurs involving some other part of the government. The House holds special elections, state governors appoint interim senators, and the Senate confirms a new justice. (The Supreme Court, as we have seen, can be left waiting quite a while when vacancies occur on its bench.)
It is only the executive branch where we have come to expect the sort of instantaneous, king-is-dead-long-live-the-king succession to occur, wherein if a secretary resigns on Monday morning there must be an acting replacement in his chair by Tuesday — if not Monday afternoon.
Imagine, if you can, a world where Attorney General Sessions was succeeded by . . . no one. A world in which the attorney general’s office simply became vacant on November 7, 2018, and will continue to be until the president nominates someone to fill it and the Senate gets around to interviewing and confirming him or her.
Would the Justice Department get less done? Almost certainly, but as Justice Thomas noted, there should exist principles higher in American government than ensuring that a team of federal lawyers have a boss for a few weeks.