The Corner

Law & the Courts

Will Slow Staffing Cause Trump and Sessions to Side with Obama against the Little Sisters of the Poor?

One of the ongoing failures of the Trump administration has been the glacial pace at which the administration has filled the policymaking jobs reserved for presidential appointees, a staffing crisis due mostly (though not entirely) to the failure to nominate people for most of the open sub-Cabinet-level positions. As Byron York elaborates:

Out of 553 important positions that require Senate confirmation — and that is by no means all the political appointments Trump has to make — only 22 Trump nominees have been confirmed, while another 53 have either been formally nominated or are awaiting formal announcement of their nominations. That leaves 478 jobs with no nominee at all. To give a few examples, there are 113,000 employees in the Department of Justice, and Attorney General Jeff Sessions is the only Senate-confirmed Trump appointee there. There are 742,000 civilian employees of the Department of Defense, and Defense Secretary James Mattis is the only Senate-confirmed Trump appointee there. There are 105,000 employees in the Agriculture Department, and there are no Senate-confirmed Trump appointees there.

The staffing crisis comes just as the volume of such jobs has been exploding; as James Pfiffner of Foreign Affairs observes, “From 1964 to 1984, 48 percent of presidential nominees were confirmed within two months. From 1984 to 1999, only 15 percent were confirmed within the same timespan.”

York identifies two reasons for this. One, as a political amateur who only recently entered politics in any serious way, Trump had little time to generate a crowd of staffers, supporters, or allies who had built up mutual trust and loyalty with Trump from prolonged service together on campaigns and common causes — what York calls Trump’s lack of a “Long March”. (Such loyalists have always been a key feature of successful White Houses, going back to George Washington staffing key positions with old Continental Army aides like Alexander Hamilton and Henry Knox). And two, in Trump’s business career, he was accustomed to relying on a small circle of people, mainly family, so he’s more accustomed to just asking Jared Kushner and Ivanka to handle one issue after another than he is in hiring large numbers of people he doesn’t know. Trump has made more good hires than bad so far — including Neil Gorsuch for the Supreme Court — but he simply can’t personally interview and size up everyone he needs to fill the open positions. Pfiffner notes a third reason: The transition team, under the direction of Chris Christie, didn’t seriously prepare to staff an incoming administration before Election Day because nobody really expected Trump to win.

That leads to a fourth reason why Trump is having trouble hiring: his relationship with the Republican party remains badly strained behind its facade of unity. Many qualified people, especially in the national-security and legal communities, are either unwilling to work for Trump or disqualified from doing so because they took strong “Never Trump” stands during the campaign (Pfiffner notes that “fifty former national security professionals who had served in Republican administrations from Richard Nixon through George W. Bush signed a letter stating that Trump was “not qualified to be Commander-in-Chief,” and that he “lacks the character, values and experience to be President.” Signers of that document, despite their valuable experience, were not likely to be welcomed”). More than a few prospective hires have seen their names floated before being shot down due to internecine fights among the administration’s factions. A lot of people recognize a toxic work environment when they see one, and want no part of it. There’s a fifth, mostly unspoken, issue as well: Trump’s terrible approval ratings leave Republicans a lot less confident that he’ll get reelected in 2020, and it’s harder to get people to give up jobs (particularly lawyers) for short-term employment for an administration that could end up as a black mark on one’s resume. The short-term issue is, in fact, one reason why most administrations have trouble finding good people to hire in their second terms. (I’m more skeptical of Pfiffner’s claim that Trump’s hiring is hampered by his desire to cut the budgets or reduce the powers of key agencies).

One inevitable consequence of failing to fill key jobs is that the administration not only fails to make new policy, it ends up defaulting to allow career staffers and bureaucrats and Obama-administration holdovers to continue to push Obama-administration policies that are anathema to Trump’s own voter base. A dramatic example has arisen in the litigation over the HHS contraception mandate, as career DOJ lawyers have explicitly cited the lack of Trump appointees at DOJ and HHS as grounds for continuing to fight East Texas Baptist University, the Little Sisters of the Poor, and other resisters of the mandate in court:

East Texas Baptist University and other plaintiffs represented by the nonprofit law firm Becket are now asking the Justice Department to drop its appeal of a district-court ruling in their favor, allowing them permanent relief from the mandate. “This litigation has gone on long enough,” the plaintiffs wrote in a petition last week to the Fifth Circuit. “It is time for the Department of Justice to move on, and to allow the court, the universities and other religious ministries to move on as well.” But Justice argued in its petition to the Fifth Circuit that it needs more time to litigate the case because numerous Cabinet and subcabinet positions in several federal agencies involved remain unfilled several months into the new administration. “The issues presented by the Supreme Court’s remand order are complex,” the Justice Department wrote…[M]any had expected the Department of Health and Human Services…to change the Obama administration’s underlying rule to fully exempt religious colleges, schools and charities from covering birth control. But HHS has not proposed any rule changes and didn’t respond to a request Monday about whether there are plans to do so.

Jeff Sessions and Tom Price should prioritize changing the HHS mandate, and ask the Trump White House for all the support they need to do so; shame on all of them if they let the slow pace of staffing continue the Obama administration’s war on religious liberty. But this won’t be the last battle that conservatives and Republicans could lose for want of soldiers willing and able to serve in the ranks of this administration.

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