Reading Steven Taylor’s post “George Will’s Obtuseness,” I agreed with his broad conclusion that the octogenarian columnist was normalizing Donald Trump’s malfeasance by highlighting comparatively trivial transgressions by President Biden, but came away thinking Will could have written a much better column that didn’t do that. To whit: Biden would have an easier time making the case that Trump was a threat to the Constitution if he himself were more faithful in following it. Upon actually reading Will’s column, though, he doesn’t even make the case, even backhandedly, that Biden has violated his oath.
The thing that triggered my initial thought was Steven’s reaction to Will’s complaint about Biden appointing Ann Carlson as Acting Director of the NHTSA after she’d been rejected by the Senate for the post.
Yes, that’s right, it is “Trumpian” to have appointed an acting administrator of the National Highway Traffic Safety Administration. Note that Carlson did, in fact, resign on December 26th (which Will notes in the column). Whether she should have been allowed to have the position even on an acting basis, I will not here attempt to debate. I will just say that I know enough about government to say that this is a low-level problem as compared to, say, calling the Secretary of State of Georgia and asking him to find you the votes you need to win an election you lost.
By the way, it is disingenuous of Will to assert “it was clear that the Senate would not confirm her” when the real issue was Republican obstruction at the committee level.
My initial thought was that the President is obligated to follow the law of the land regardless of the gravity we might assign to a particular appointment and that “Republican obstruction” and “the Senate would not confirm her” are one and the same thing. Further, I remember very well complaints from Trump opponents that Trump was routinely violation the very same Vacancies Act by having people who weren’t Senate-confirmed fill roles requiring Senate confirmation.
But reading Will’s description undercuts the comparison:
The president has plenary power to nominate principal officers of the federal government without seeking prior advice from the Senate. The Senate has plenary power to confirm — or reject — nominees, and it can somewhat condition the president’s power by stipulating certain qualifications for particular offices.
Biden nominated Ann Carlson last March to be administrator of the National Highway Traffic Safety Administration. Two months later, when it was clear that the Senate would not confirm her, Biden withdrew the nomination. But less than five weeks after that, he named Carlson acting administrator. His impertinence would perhaps be limited, by the Vacancies Act, to 210 days, which would expireDec. 26. Furthermore, the Supreme Court has held that the act prohibits “any person who has been nominated to fill any vacant office from performing that office’s duties in an acting capacity.”
Biden, whose indifference to these legalities is Trumpian, is also unimpressed by several other provisions of the act that redundantly disqualify Carlson. In a masterpiece of understatement, Sen. Ted Cruz (R-Tex.) says, “It would be odd indeed for the law to prohibit someone to serve as acting while nomination is pending but to allow them to serve as acting after their nomination was pulled.”
In September, Cruz proposed an amendment to an appropriations bill that would have defunded Carlson by prohibiting anyone who was nominated and failed to get Senate approval for a position from being paid to act in that position. The Senate rejected the amendment 49-47, with only one Democrat (West Virginia’s Joe Manchin III, of course) supporting it.
One has to read past the huffing and puffing carefully to understand that Biden did nothing illegal here. The Vacancies Act prohibits a nominee for a Senate-confirmable office from serving in the role in an Acting capacity while the nomination is pending. Even Trump followed the letter of the law here, even rotating people who were next in the line of succession and, indeed, Senate-confirmed in the deputy role, out while the nomination was pending. But Biden didn’t violate it, either.
- Biden nominated Carlson for the job
- Presumably, someone else was filling said job in an Acting capacity
- When it became clear the Senate would not confirm Carlson, Biden withdrew the nomination
- Four weeks and change later, Biden appointed Carlson in an Acting capacity
Will is in a huff because Biden appointed Carlson to the role after the nomination was withdrawn. He quotes Cruz as saying, “It would be odd indeed for the law to prohibit someone to serve as acting while nomination is pending but to allow them to serve as acting after their nomination was pulled.” And, I concede, it would be. Alas, the next paragraph tells us that Cruz tried to get an amendment passed to the law making it clear and that it failed. Ipso facto, the law as it exists does indeed permit the very odd thing.
How common the practice is, I honestly don’t know. I do, however, recall President George W. Bush using a recess appointment to make John Bolton our UN Ambassador after it was clear that his nomination to the post wouldn’t make it through the Senate. Bush was reportedly reluctant to make the move, fearing that it would antagonize Senate Democrats, but ultimately did so and allowed Bolton to serve through the expiration of the legal limit of said appointment. Nearly eight years later, the Supreme Court more-or-less closed that particular loophole.
Will’s other objections (also noted by Steven):
Instances of Trump’s anti-constitutional behavior have been amply reported and deplored. Biden’s, less so — although they (e.g., the eviction moratorium, the vaccine mandate, the cancellation of student debt), and judicial reprimands of them, have been frequent.
Aside from the silly parallelism that Steven highlights, none of these measures are anti-Constituitonal. I opposed the eviction moratorium and cancellation of student debt, for both policy and legal reasons,* but it’s hardly unusual for Presidents to test the boundaries of their Constitutional and statutory authority and defy the courts to tell them No. Indeed, I urged Biden to do just that on the vaccine mandates.
Regardless, Will’s column is even worse than I thought it was after Steven’s post. It’s not that he’s comparing Biden’s molehills to Trump’s mountains but that he’s treating Biden’s following the letter but perhaps not the spirit of the law as equivalent to Trump’s wanton criminality. It’s pure hackery.
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*See my August 2021 post “Biden Illegally Extends Eviction Moratorium.” I wrote several posts on the issue of student debt relief, which was more complicated on both legal and policy grounds. But see, for example, Steven’s October 2022 post “Biden’s Student Loan Forgiveness Survives Initial Legal Challenges,” my March 2023 post “Biden Student Loan Forgiveness in Danger,” and my August 2023 post “Student Loan Forgiveness Done Right.”
