Implications of Senate Indefinite Refusal to Confirm Cabinet Appointments

The Founders clearly outlined their expectations regarding the Senate's role in confirming presidential nominations, as detailed in the Federalist Papers. The constitutional requirements are not explicitly mentioned, indicating a tacit understanding that the Senate retains the right to refuse to vote on nominations. This sovereignty has been embraced by Senatorial Republicans as a fundamental principle, solidifying their 'sacred patriotic right' to withhold confirmation if necessary.

Interim Appointments: A Get-By Measure

Should the Senate indefinitely refuse to confirm Cabinet appointees, the President has the authority to appoint Acting Secretaries. This situation has been tested during the Trump administration, where interim heads were appointed when the Senate blocked the official nominees. While these appointments were legally justified as a temporary measure, the process was viewed with suspicion and could be deemed unethical due to the avoidance of the constitutional requirement of advice and consent.

In the current scenario, Biden might consider appointing a moderate candidate first. However, if the Senate continues to obstruct, Biden could strategically appoint an interim radical, leaving the option to promote his preferred candidate once confirmed. This tactic would serve as a significant motivator for the Senate to expedite the confirmation process.

The Impact on Cabinet Responsibilities

When a Cabinet position remains vacant due to refusal of confirmation, the next person in line for that department assumes the duties. For instance, the Undersecretary or Assistant Secretary might take on the responsibilities until a new nominee is provided and confirmed. The importance of constitutional checks and balances is underscored, as this situation could lead to prolonged vacancies in critical government positions.

Generally, nominees do not hold the position while the confirmation process is pending, effectively leading to a delay in key government functions. While the President can technically use recess appointments to temporarily fill the roles, the Senate often uses pro forma sessions to prevent such actions, thereby maintaining control over the confirmation process.

The Last Resort: Career Appointment

In the absence of Senate action, a President may be compelled to rely on career civil servants acting in a temporary capacity. These Acting Secretaries operate under legal constraints, with defined limits on the scope of their responsibilities. This situation is a last resort, fundamentally altering how government functions during times of political gridlock.

While rare, the Senate has rejected nominees in the past, though more often nominees with significant resistance in the Senate will withdraw their names to avoid a rejection vote. Recent examples include Andrew Puzder's withdrawal as Secretary of Labor and the withdrawals of some of President Obama's nominees prior to the confirmation of Gary Locke as Secretary of Commerce. The last Senate rejection of a Cabinet nominee occurred in 1989, when John Tower, President George H.W. Bush's nominee for Secretary of Defense, lost a 53-47 vote.

Conclusion

The indefinite refusal to confirm Cabinet appointments presents a unique challenge to the executive branch. It highlights the tension between the legislative and executive branches and underscores the importance of political cooperation and mutual respect for the smooth functioning of the government. As the current administration navigates this situation, it will be crucial to find a balance between exerting executive authority and maintaining constitutional norms.