The Substantial Power of President Trump’s Appointees

During the Restoration, Charles II traded jibes with his courtiers. None was bolder than the Earl of Rochester who recited this poem in the monarch’s presence:

We have a pretty witty king,
Whose word no man relies on;
He never said a foolish thing,
Nor ever did a wise one.

Charles wittily replied that the last two lines were very true: his words were his own, but his actions were those of his ministers.

Could Donald Trump turn out to be the reverse of Charles II?  Many of his tweets have hardly been wise, but his appointments to the Cabinet have been largely good ones for classical liberalism and in any event almost universally men and women of substance. Just read this lovely essay written by a Democrat about Rex Tillerson, Trump’s nominee for Secretary of State, and his service as a juror. You will have the measure of a man who has the measure of the world.

And these appointments have enormous importance for government because the President, like Charles II,  must govern largely through his cabinet secretaries and agency heads rather than by Twitter. These officials or their subordinates have to sign regulations and regulatory repeals, agree on initiating law suits, and act in other ways that affect the rights and duties of Americans.

It is true that President Trump can say “You’re fired” to cabinet secretaries and many other agency heads. Indeed, if one credits, as I do, the unitary executive, he should be able to fire any one of them. But firing is very politically costly. It creates controversy, carries with it an admission of error in having appointed the person dismissed, and requires the confirmation of a successor. As a result, cabinet officials and agency heads exercise substantial personal discretion. They may act and keep their positions so long as their decisions are not more costly to the President than firing them.

To be sure, the President has a bully pulpit which can affect the climate of opinion. He also can take some actions wholly on his own, particularly in foreign affairs, although here too any sustained course will require support from his subordinates.  But as a general matter the soundness of Trump’s appointees will make itself acutely felt in policy.

Already Jim Mattis, the nominee for Secretary of Defense, is using his power to get good subordinates where it matters most. He has agreed that the White House will have a free hand in nominating service secretaries, but will be able choose his own people in key positions at DOD proper. This division of labor advances his authority. While the service secretaries are plum positions for those appointed, they are not as important for defense policy as the main actors at DOD.

Good appointments at the top of an administration naturally generate other good subordinate appointments. That virtuous cascade is also a consequence of the practical autonomy of cabinet secretaries.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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