From James Madison to Donald Trump
Trump's cabinet nominees are crashing into Madison's Federalist Papers and testing the Constitution's guardrails
OK, back to politics. My goal going forward is to (not entirely, but mostly) publish pieces that take a macro view of things, with history as a backdrop when possible. And to balance these posts about politics with other pieces about travel, books, ideas, and life. So, for today, some thoughts on how some of Donald Trump’s recent cabinet appointments may be setting up a clash with the U.S. Senate and America’s 236-year-old Constitution.
James Madison and the Constitution’s checks and balances
“Ambition must be made to counteract ambition.”
These are James Madison’s famous words from Federalist No. 51, which he wrote during the debate over ratifying the U.S. Constitution. According to this argument, if one branch of government ever became too ambitious it would be kept in check by the another branch, thus preventing anyone from amassing too much power.
“If men were angels, no government would be necessary,” wrote Madison. “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
Important words there: Oblige the government to control itself.
The Founders knew there would come a time when individuals would be tempted by power. They also knew that morals and honor alone wouldn’t save democracy. However, a system of government in which the different branches could exert checks on each other might allow a government to control itself.
So far, they’ve been correct. Policy-making surely moves too slowly at times, but no single individual has ever gained full control of the government, which was one of the Founders’ primary concerns.
But now, 236 years after Madison’s words, the guardrails in the Constitution are being tested in new ways.
Donald Trump’s cabinet nominees
In the past week, president-elect Donald Trump has made a few serious picks for his Cabinet (i.e., Marco Rubio for Secretary of State), a few somewhat less serious picks that were at least within the range of what might be expected, and then a handful of head-scratching choices that rise to the level of WTH was he thinking?
Below are four individuals, none of whom has much experience for the jobs they’ve been nominated for. But that’s not primarily why they’re listed here. Rather, it’s because their nominations seem designed mostly to test the loyalty of Senate Republicans (and by extension the strength of the Constitution) and maybe even just to give the finger to the rest of government.
1. Pete Hegseth for Secretary of Defense. Hegseth is a decorated military veteran. OK, great. But there are hundreds of thousands of veterans who’ve served with distinction and still aren’t qualified to run the Pentagon or manage the world’s most powerful military. Hegseth has no background in defense policy, whether inside or outside of government, or any experience managing a large organization.
His main qualifications seem to be that he spent the past decade at Fox News and is willing to clean house. Hegseth has called for firing a whole swath of generals and other senior military leaders. And the Trump team is already planning for a “Warrior Board” with the power to remove senior officers from duty. Sounds an awful lot like an effort to make sure the military’s top command is loyal not to the Constitution but to the White House, doesn’t it?
Even crazier? Hegseth’s National Guard unit was activated to protect Joe Biden’s 2020 inauguration ceremony, but Hegseth was removed from duty that day because he was deemed a potential “insider threat” due to apparent links to white supremacist groups. He also has ties to a Christian nationalist group that believes the U.S. should be subject to biblical law.
So yeah, the National Guard didn’t trust him to guard Biden’s inauguration but now he’s going to be in charge of the entire military?
2. Tulsi Gabbard for Director of National Intelligence. Gabbard is in the Army Reserve and is a former Democratic Representative from Hawaii who ran for president in 2020 (in one famous debate moment she criticized Kamala Harris for being too conservative on crime issues, which is interesting because this year she backed a candidate who ran on the position that Harris was too liberal on crime.) In those military and government jobs, Gabbard was never involved with anything related to intelligence policy, yet she’s now being put in charge of 16 intelligence agencies.
What’s more alarming to the intelligence community, however, is Gabbard’s history of taking the side of foreign dictators such as Russian President Vladimir Putin and Syrian President Bashar al-Assad. During her 2020 presidential campaign, there was evidence she was supported by Russian bots online, and Hillary Clinton went so far as to suggest that Russia was “grooming” her.
Two years ago, GOP Senator Mitt Romney blasted Gabbard for “treasonous lies” and for “parroting false Russian propaganda,” and some Democrats have wondered aloud whether she is, in fact, a Russian asset. Meanwhile, Russian state media has praised Gabbard, calling her “our girlfriend” and a “comrade.”
There is fear among intelligence professionals that, with Gabbard at the helm, other nations will stop cooperating with the U.S. when it comes to intelligence matters for fear that information will end up in the wrong hands, and that recruitment of foreign assets will become nearly impossible.
Ironically, because of the concerns about Gabbard’s closeness to Russia it’s possible (or even likely) that she’d be denied a security clearance if she were applying for a government job. And yet she’s going to be in charge of the nation’s intelligence apparatus.
3. Matt Gaetz for Attorney General. Gaetz was a practicing lawyer in Florida from 2008 until being elected to Congress in 2016. He was mostly involved with small cases ranging from traffic tickets to business disputes. In Congress, his biggest claims to fame were his appearances on Fox News and his feud with former Speaker of the House Kevin McCarthy, which resulted in McCarthy losing his speakership.
More concerning than a relatively light resume for an Attorney General candidate, however, is the fact that Gaetz was recently under investigation by the Justice Department and the House Ethics Committee for sex trafficking, illicit drug use, and obstruction of justice. I don’t particularly care what someone does in their personal life, so long as it’s consensual and doesn’t hurt anyone, but uh, if you’re a sitting Congressman then maybe, just maybe, it’s not the best idea to participate in drug-fueled orgies, sleep with high school girls, and pay for sex? And now you want to be the country’s chief law enforcement officer?
Gatez is another nominee who’d likely fail a background check and not even be hired for a job within the agency he’s now being asked to lead. But, just as with Hegseth, a reason Trump was drawn to Gaetz was his willingness to gut the Justice Department (one Trump insider said he was the candidate who was most willing to “start cuttin' f---in' heads") and to investigate Trump’s adversaries, which career employees at the department resisted during Trump’s first term.
4. Robert Kennedy for Secretary of Health and Human Services. Kennedy is an environmental lawyer with no background in health care or health policy. I give him credit for the fact that he once stacked up actual accomplishments as an environmental activist for clean water. And even now he has a few interesting ideas about tackling America’s obesity crisis or getting chemical additives out of food.
So I can envision a universe in which someone like Kennedy could have a role in injecting new ideas about health into the American discourse. New thinking is good. However, aside from his lack of background in anything related to health, there is one glaring reason why he shouldn’t be anywhere near HHS: Kennedy is an anti-vaccine crusader.
The founder of an anti-vaccine group, Kennedy has long promoted discredited theories that childhood vaccines cause autism. And his criticisms of the COVID vaccine helped convince some Americans to forego shots that might have saved thousands of lives. Moreover, in Samoa in 2019 he boosted an anti-vaccine campaign that contributed to a decrease in measles vaccinations on the island. Soon thereafter, a measles outbreak led to 83 deaths.
In recent interviews, he suggested he would eliminate 600 jobs at the National Institutes of Health and pause research into infectious diseases. Aside from the disaster that would ensue if there were another pandemic, the end result of all this would almost surely be an increase in diseases such as measles or polio. Just check out the chart in this Vox article showing the rates of certain diseases in America before and after the advent of vaccines. Literally hundreds of thousands of cases per year of potentially fatal diseases have been eliminated, which is why vaccination has been called the greatest public health achievement of the 20th century.
Are we really going to put a vaccine skeptic in charge of America’s public health?
The Senate’s predicament. Or, why Madison’s words are still important.
Ultimately, what Trump is doing is daring Republicans in the Senate to oppose him on these nominations. That’s what takes us back to James Madison and the Constitution.
If Senators vote against some or all of these nominees, they’ll be doing their constitutional duty to advise and consent on such nominations. But they’ll also invite the wrath of a party leader who has been willing to support primary challenges for anyone who has ever dared oppose him.
However, if Senators vote for a nominee whom they believe doesn’t have the background required for the job, they will have acquiesced to Trump’s dominance over them. The president will presumably expect loyalty from then on, and this would erase a vital check between the legislative and executive branches.
On top of this, Trump is threatening to find a way around the confirmation process if Senators choose not to go along. He’s already suggested the Senate should consider adjourning to allow the president to make recess appointments, which would avoid confirmation hearings altogether. And if Senators resist, he has another trick up his sleeve, which would only require the cooperation of Speaker of the House Mike Johnson.
There is a little known clause in the Constitution which has never been used (I had to look it up, I’d never heard of it) in which a president is allowed to serve as a tiebreaking vote if the two houses of Congress can’t agree on an adjournment schedule. To be clear, this was written for a time when legislators would go home for extended periods, as it then took a week on horseback to travel just from Boston to New York, or New York to Virginia.
Nevertheless, what it means is that if Johnson, say, got the House to vote for adjournment and the Senate resisted, Trump could side with the House and declare all of Congress adjourned for 10 days, thus allowing him to make any appointments to his administration that he wishes. Without confirmation hearings. Without Senate approval.
Would it come to this? I don’t know. Probably more likely is that the Senate will push to defeat one candidate (there are already rumblings that the Gaetz nomination may not have enough support), which would make it seem like they served as somewhat of a check on the president. And then they’ll have used up their political capital and will vote for all the remaining nominees.
The irony is that Gaetz is not less qualified than the other three named above, he’s just angered more members of his party and so they see him as disposable. But it would still mean unqualified sycophants at the head of the Pentagon, the intelligence agencies, and the nation’s health organizations. And Gaetz would then just be replaced by a different nominee who was superficially more qualified but just as eager to go after the president’s perceived enemies.
So in the past week Trump has essentially put his foot on the necks of GOP Senators and said, “Go ahead, find a way out of this one.” It’s the move of a would-be authoritarian.
Madison, Washington, Hamilton, and other architects of the Constitution are looking on with crossed fingers for American democracy.