Biden has the right to name his own cabinet

Republican senators are threatening to refuse to confirm President-elect Joe Biden’s choices for his cabinet. They appear to be especially unhappy about the selection of Neera Tanden to head the Office of Management and Budget, in part because she posted a number of tweets that were sharply critical of them. But they might choose to make the confirmation process a nightmare for several of Biden’s nominees.
That would be a clear betrayal of the US Constitution. Under the constitutional plan, the Senate is obligated to give the president a lot of discretion insofar as he is choosing the people who will be the working for him. (And yes, this objection applies to the many Democratic senators who voted against President Donald Trump’s choices, such as Eugene Scalia for Secretary of Labor.)
To see why, let’s begin with the text. Article II, section 1 of the Constitution states, “The executive power shall be vested in a president of the United States of America.”
At a minimum, that provision means that members of the president’s cabinet, and other high-level executive branch officials, are exercising authority vested in the president himself. As the Supreme Court recently said, such officials can be fired by the president — if and whenever he chooses. At the very least, it would be awkward to say that the president has broad power to remove his appointees — while also insisting that the Senate can freely reject the president’s choices about who should be working for him.
True, the Constitution gives the Senate the authority to advise and consent to the appointment of Officers of the United States, including cabinet heads. But what does that authority entail? How much power is it meant to give the Senate?
The most illuminating discussion comes from Alexander Hamilton in Federalist 76. Hamilton began by defending the grant of the power of nomination to the president, rather than to the Senate, arguing that the president “will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number.”
Hamilton acknowledged that under the constitutional plan, the president’s nomination might be “overruled” by the Senate. But in his view, that would be a rare event because the president could immediately make another choice. As the Constitution was set up, the Senate would rarely “reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination.”
Why, then, did the Constitution not give the president what Hamilton called “the absolute power of appointment”? Why give the Senate any role at all?
In Hamilton’s view, “the necessity of their concurrence would have a powerful, though, in general, a silent operation.” It would serve as “an excellent check upon a spirit of favouritism” in the President. It “would tend greatly to prevent the appointment of unfit characters.” It would protect against appointments made “from State prejudice, from family connection, from personal attachment, or from a view to popularity.”
That’s compressed, but Hamilton’s central focus is on “unfit characters” and “a spirit of favouritism.”
It follows that the Senate is not obliged to confirm people who do not have basic competence. A nominee for Secretary of State should not lack foreign policy experience. And if a nominee is corrupt, she is “unfit” for that reason.
So too, Hamilton was concerned with “family connection” and “personal attachment.” If a president nominates a cousin or a close personal friend, a red light should start flashing — demanding a careful, even skeptical inquiry into the question of fitness.
But if we do not have incompetence, corruption or personal favouritism, the Constitution gives the president a lot of latitude in selecting members of his cabinet. A senator is not supposed to vote against a nominee simply because of a strong policy disagreement, or even because of a belief that the nominee would do a bad job — and much less because a nominee said mean things about him or his party in tweets.
True, the Senate could reasonably go beyond Hamilton’s catalogue. Suppose that a president chooses people with views that are incompatible with the position for which they have been nominated — say, an administrator of the Environmental Protection Agency who thinks that the Clean Air Act should be repealed or a secretary of the Department of Homeland Security who sympathises with terrorists.
The Senate obviously need not confirm such people. And we could imagine harder cases, in which presidential nominees have views that are plausibly taken as extreme. Senators are entitled to ask whether such people would follow the law and act within the bounds of reasonableness. But those bounds are broad, and even if senators intensely disagree with a nominee on matters of policy, the president’s choices deserve a lot of deference.
Ours is a period in which party loyalties and hostility to “the other side” have led to an assault on longstanding institutional norms. But whether the president is Republican or Democratic, one thing is clear: With very limited exceptions, the Constitution gives him the right to choose his own staff.

—Bloomberg

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”