Senate Bill Would Increase Presidential Power Over Appointments

The Presidential Appointment Efficiency and Streamlining Act of 2011 (S679) would effectively reduce the “advise and consent” power of the Senate over Executive appointments (via VillageOfTheBanned and Heritage).

That paragraph in Article 2, Section 2 reads as follows:

He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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. [emphases mine]

Per Heritage:

On March 30, 2011, Senator Charles Schumer (D–NY) with 15 cosponsors, including the Senate Majority and Republican Leaders, as well as six other Democratic Senators, six other Republican Senators, and an Independent Senator,[1] introduced in the Senate the Presidential Appointment Efficiency and Streamlining Act of 2011 (S. 679). The bill was referred to the Committee on Homeland Security and Governmental Affairs.

The bill reduces the number of presidential appointments that require the consent of the Senate and establishes within the executive branch a Working Group on Streamlining Paperwork for Executive Nominations. Individuals nominated to senior executive offices suffer slow and detailed background investigations and mounds of duplicative paperwork before a President sends their nominations to the Senate. After nomination, many nominees suffer time-consuming inaction or time-consuming and excruciating action as the Senate proceeds (or does not) with consideration of the nomination. The sponsors of S. 679 have identified a valid problem, but proposed the wrong solution. Congress should not enact S. 679.

While a good case could be made to streamline governing processes, the conservative think-tank warns:

When the delegates of the states gathered in Philadelphia in the summer of 1787 and wrote the Constitution, they distributed the powers of the federal government among two Houses of Congress, a President, and a judiciary, and required in many cases that two of them work together to exercise a particular constitutional power. That separation of powers protects the liberties of the American people by preventing any one officer of the government from aggregating too much power.

The Framers of the Constitution did not give the President the kingly power to appoint the senior officers of the government by himself. Instead, they allowed the President to name an individual for a senior office, but then required the President to obtain the Senate’s consent before appointing the individual to office. Thus, they required the cooperation of the President and the Senate to put someone in high office. …

The Congress should not reduce the number of Senate-confirmed appointments as a means of dealing with its cumbersome and inefficient internal process for considering nominations. Doing so gives away Senate influence over a number of significant appointments, does nothing to improve the Senate process, and still leaves nominees whose offices require nominations mired in the Senate process. The proper solution to the problem of a slow Senate is to speed up the Senate rather than to diminish the role of the Senate. The Senate should look inward and streamline its internal procedures for considering all nominations.[6] The proper solution also is the faster one, as the Senate can accomplish the solution by acting on its own in the exercise of its power to make Senate rules,[7] while S. 679 requires approval by both Houses of Congress. …

The sponsors of the legislation have identified some appropriate objectives with respect to the nominations process: simplify executive branch nominations paperwork, facilitate sharing of the information with appropriate officials in the executive branch, tailor the requirements of background investigations to the nature of the offices involved in the appointment, and increase the efficiency of, and thereby accelerate, each element of the process. The President should direct his subordinates to work together to plan how to accomplish these objectives, execute the plan, and report regularly to him on progress until they achieve all the objectives. The Congress, however, should not mandate by S. 679 that the President do so, for the manner by which a President decides whom to nominate to federal office is beyond the power of Congress to regulate.[8]

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