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This is exactly the argument for Senate confirmation Hamilton makes in the Federalist Papers: that it deters a president from filling important offices with “insignificant” and “pliant” people who will act as “obsequious instruments of his pleasure.”
Unfortunately, Hamilton was a little too optimistic about the Senate.
The acting attorney general of the United States did a brief, unremarkable stint as U.S. attorney, followed by a failed political career, and then wound up as a pitchman & enforcer for a now-defunct scam outfit that peddled toilets for the well-endowed.
To borrow a phrase, they’re not sending their best. Even among the dregs willing to work for him, Trump is selecting for insignificance, and therefore pliancy.
Concretely, suppose Trump does decide to declare a spurious “national emergency” and dubiously invokes 10 USC §2808 as an authority to reprogram funds appropriated to other military construction projects to build a wall. Who within the executive branch might actually push back?
The acting secretary of defense is a career Boeing VP who, even if he were inclined to question the propriety of the move, doesn’t have much political capital to spend. He’s just the sub for Mattis, after all—why think Trump would hesitate to swap in another “acting”?
The acting AG is a failed politician who probably couldn’t even get a clearance for a DOJ job after his involvement in a now-defunct fraudulent business, if the White House hadn’t been so enamored of his TV appearances. He’s got no reputation or political base to wield.
Neither has stature commensurate with his office, and so even if they had the character to want to push back, neither has much practical ability to do so. They’re temps, easily replaced by new temps. Who cares if they threaten to resign?
That’s not a dynamic we normally teach in civics as part of our formal “system of checks and balances”—but it’s still an important mechanism, and as Federalist 76 suggests, it’s something the Framers were very much conscious of.
Formally, The Exectutive Power is vested in the person of the president. Informally—with a formal/structural assist from the appointment clause—high offices are to be held by people of sufficient independent stature that they act as a brake on a corrupt or reckless executive.
Legally, the president has every right to replace a subordinate officer who won’t play ball. But by design, it’s supposed to be politically costly to do so.
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