Dispatches: To “preserve, protect and defend.” Or not.


Before he [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Article II, Section 1 clause 8

He shall … nominate, by and with the Advice and Consent of the Senate … 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. Article II, Section 2 clause 2 (Appointments clause)

The first excerpt specifies that the President must swear to “preserve, protect and defend” the Constitution. That means he is obligated, among other things, to carry out the functions specified in the other excerpt above, that is the nomination of all officers of government. Certain of these offices have been defined by the Supreme Court as principle offices, including Cabinet Members, federal judges and ambassadors.

These offices require approval by the Senate as part of the “checks and balances” built into the Constitution to prevent one branch from overpowering the others. In this case, if the President tries to appoint members of his cabinet who are incompetent to lead or hostile to the department nominated to lead, or if he is appointed for nefarious purposes (such as protecting the President from scrutiny for unlawful activity), in theory the Senate should and would be able to prevent the appointment.

It’s far from a perfect system as demonstrated by the first two years of the Trump administration, where both Congress and the Executive were controlled by loyalist lunatics, but if the law is faithfully executed, a primary function of the Presidency, there exists a layer of protection of the integrity of the Executive branch, whether it is effective or not.

The problem is that the Trump administration has been slow to fill executive positions, Cabinet turnover is historically high, and once a position becomes vacant the President is slow to fill it. This results in many important government offices filled by the President alone without the consent of the Senate.

This might be explained away as another example of Trump incompetence, except as reported in NPR after the unceremonious dismissal of Homeland Security Secretary Kirsten Nielsen:

Kevin McAleenan was named acting secretary of homeland security to replace Nielsen. Patrick Shanahan has been acting defense secretary since Jan. 1. And David Bernhardt has been acting interior secretary since Jan. 2, though he has been nominated to become the permanent interior secretary.

Trump sees an advantage in their status.

“I like ‘acting’ because I can move so quickly,” he told CBS’ Face The Nation in February, adding, “It gives me more flexibility.”

The Constitution was designed to be deliberately cumbersome. The framers didn’t want a government that could act quickly or even very efficiently. Their experience with the British Parliament had filled them with well-founded suspicion of too much power in a central government, and the system of checks and balances was supposed to ensure circumspection and care.

Mr. Trump either doesn’t know this (after all, even though the Constitution contains only seven articles, his has twelve), or he is willfully disregarding this in hopes of concentrating enough power in his own hands to hinder any attempt to oppose his dubiously legal agenda or call him to account for his crimes.

The loyalists in government and among the President’s supporters have been lulled to sleep in the poppy fields surrounding Oz. It’s up to us.

Not to speak is to speak. Not to act is to act.

The current deficiency of principle officers is shown in this graphic from NPR.