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Biden Evades The Constitution By Letting Failed Nominees Be De Facto Agency Heads

This is not just some obscure item of decorum. It is a constitutional issue that ignores the ‘advice and consent of the Senate’ required for nominees.


As Biden moves further left, he end-runs the Constitution more. Two failed federal nominations are just the latest chapters in an unfolding story of Biden’s disregard for the institution he served for almost half a century, the Constitution he swore to “preserve, protect, and defend,” and the country that elected him president. They are also the introduction to what a second Biden term would look like.

The ‘Acting Secretary’ Loophole

Biden’s first failed nominee is Deputy Secretary of Labor Julie Su. Controversial from the beginning, Su proved too much so for confirmation to the Department of Labor’s top spot. On Feb. 28, President Biden announced: “It is my honor to nominate Julie Su to be our country’s next Secretary of Labor. Julie has spent her life fighting to make sure that everyone has a fair shot. … I respectfully ask the Senate to take up this nomination quickly so that we can finish the job for America’s workers.”

The Senate did, and then it said no — specifically Sen. Manchin, D-W.Va., and Sen. Sinema, I-Ariz., though there’s no telling how many more would have joined them, because in July, the administration threw in the towel on Su’s nomination, but they refuse to give up Su. So for over two months, Su has been in place as acting labor secretary. The administration shows no sign of nominating anyone else, regardless of her Senate rejection. So although Su got her “fair shot,” the administration will plow ahead just the same.

Biden’s second failed nominee is Jeff Marootian, who was nominated to be assistant secretary to head the Office of Energy Efficiency and Renewable Energy. Over his circuitous yearlong nomination route, Marootian demonstrated his intention to take this position of obscurity and turn himself into America’s Kitchen Czar, regulating ceiling fans, gas furnaces, and everything in between. In the name of efficiency, he wants America’s working-class families to return to penury.

Once again, Manchin said no, and again the administration threw in the nomination towel. But again, they kept Marootian as deputy assistant secretary for the same office and decided not to nominate an assistant secretary — thereby again turning No. 2 into No. 1.

Skirting the Senate, Skirting the Constitution  

Both nominations are astounding in their disregard of the Senate. This should be particularly galling to that institution and particularly contrary for Joe Biden. After all, Biden served six terms in the Senate from 1973 to 2009. He was also the chairman of two committees (Foreign Relations and Judiciary), which oversee nominations. And for another eight years, he was vice president, whose primary duty is to preside over the Senate. In his former roles as senator, chairman, or vice president, he would have never approved of this.

This is not just some obscure item of decorum. It is a constitutional issue. Article II provides for the advice and consent of the Senate in the appointment of executive branch officers. The Senate has not just failed to give its consent, it has clearly rejected these nominations. Nor is this failure to consent over obscure issues; both occurred over fundamental policy — policies that the rejected nominees intended to pursue and are now continuing to. Policies that the American people, through their elected senators, clearly reject.

And finally, this is not some staunch opposition Senate. These rejections have come from a Senate controlled by Biden’s own party. 

It is time that the Senate stood up for itself by acting like the constitutional co-equal it is. Instead of busying itself with relaxing its dress code, it should focus on acting the part of being senatorial. All senators, regardless of party, should be united in protecting the constitutional prerogatives of their body of Congress. 

And Republicans should insist that they do so. Both Biden’s nominees do not have majority support — if they did, they would be confirmed. Republicans should band together with those Democrats and independents who oppose these nominations and insist that the administration remove them from their positions as de facto heads.

A Preview of a Second Biden Term

These nomination rejections also say something more: how Biden will treat not just the Senate, but the Constitution and the country should he win a second term. Such end-runs will not just mean more of the same — they will mean more of the worst. 

Biden is deeply unpopular. Despite being protected by the establishment media, RealClearPolitics’ average of national polling this week puts Biden’s approval rating at just 41.1 percent (with 54.3 percent disapproval). 

As support from the middle collapses, Biden becomes more dependent on the left. To pursue the extreme policies that the left demands, Biden must nominate more extreme people. As the American people and their representatives in the Senate reject them, the more enraged and demanding the left becomes. 

In a second term, Biden would have no need to care what the Senate, the Constitution, or the American people have to say about his utter disregard for them. If he is so dismissive now, how much more will he be when he is beholden only to the left?

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