Power Lies with the U.S. Senate

The recently adopted Homeland Security Appropriations Act contains a bunch of things. Its most famous, and yet probably overrated, provision is the construction of a 700 mile fence along the United States-Mexico boarder. For an excellent analysis of the fence's likely effectiveness, I suggest watching this episode The Show with ZeFrank.

Less know, yet far more important, the bill contains provisions for the reworking of the Federal Emergency Management Administration (FEMA), long the bad guys in X-Files who were going to strip of our constitutional rights, and most recently the bad guys in real life who let people die on rooftops.

The provision provides specific criteria by which future FEMA Directors are to be judged. I was expecting to provide a link here, but since there are only two qualifications, I'll just include the in their entiretiy for the record.

QUALIFICATIONS- The Administrator shall be appointed from among individuals who have--
(A) a demonstrated ability in and knowledge of emergency management and homeland security; and
(B) not less than 5 years of executive leadership and management experience in the public or private sector.

Now, not surprisingly the President is displeased. And for once let me say, Bush is right.

Not to the extent that the director of FEMA shouldn't have those qualifications... or that years of judging Arabian horses is a sufficiently life-learning qualification. Where he's right is what the law says about Presidential appointments.

First, it is worth noting that the law on this isn't 100% clear... there is lots of ambiguity with things like independent commissions (i.e. FEC, FDA, FCC, etc). But when someone is a clear executive officer, and I don't believe anyone is claiming FEMA is otherwise, the law is clear. In those cases the authority of who is nominated lies solely with the President.

It's right there in the Constitution, Article 2, Section 2. Doesn't say anything about Congress getting to put limits as to who can, and cannot, be nominated. Now, the Congress does get a say when the position is a so called "inferior officer", like a mailman. But the big dudes report directly to the President and do not answer to Congress.

Of course, the founders weren't so stupid as to provide unchecked authority. The appointment power so cherished by Bush is balanced against the Senate's confirmation power. You'll find it right there in the same line of the Constitution that talks about the appointment. A majority of the Senate must approve the appointment for them to take office and exercise all those fancy powers.

The question we should be asking is whether the confirmation process has been broken by partisan intertwining of the White House and the Senate? Consider the following: President Bush nominates Mr. Guy to be the next FEMA Director. Mr. Guy is a donnor to the party, or maybe a former party official, doesn't matter. What matters is that if Mr. Guy falls short of the criteria passed by the Congress, the only people who can actually do anything is the United States Senate, the one with a majority of Republican Senators who for the past six years have staked their political future, and their party's, to the President's vision for America.

What is the realistic chance that the Republicans will vote against the nomination of the President? Will they really give a hoot about the statute? I don't think so. Maybe the Democrats will try to make some political noise, but the only real tool they have is the filibuster, and we all know how filibustering political appointees has worked out in the past.

See, although a majority of the Senators may have adopted that law, they are not bound to uphold it. The laws of the United States do not control the authority of the branches of Congress. If the Senate is serious about adopting standards for political appointees it has to do so with a change to the Senate Rules. Until they start limiting themselves, instead of the President, this is all just smoke and mirrors.