Cato: Are 13 Current Cabinet Members Unconstitutional?

 By the time Joe Biden was inaugurated as the 46th president yesterday, every member of President Trump’s cabinet had resigned. That’s customary when a new president takes office. Because none of President Biden’s nominees to fill his cabinet have yet been confirmed by the Senate, all fifteen cabinet‐​level departments are currently being led by “acting secretaries.” These acting secretaries serve either by virtue of succession statutes specific to particular departments or by virtue of the “Vacancies Act,” a law that gives the president broad discretion to fill vacancies across the federal government with “acting officers” (but places time limits on their service).

But there’s a serious constitutional issue with most of the people President Biden has chosen as his acting secretaries. Only two of them were confirmed by the Senate to their primary jobs, the jobs they held before they were elevated to acting secretary (and jobs they still technically hold). Those two are Acting Secretary of Defense David Norquist, who was confirmed by the Senate as Deputy Secretary of Defense, and Acting Secretary of Homeland Security David Pekoske, who was confirmed by the Senate as Administrator of the Transportation Security Administration. That leaves thirteen current members of the cabinet who have never been confirmed by the Senate.

This raises constitutional concerns because the Appointments Clause of the U.S. Constitution requires that all “officers of the United States” must be confirmed by the Senate. There is only one exception to this rule, an exception for “inferior officers.” The Constitution allows Congress to decide that a particular inferior officer can be appointed by the president unilaterally, without Senate consent. That means if these acting cabinet secretaries are only “inferior officers,” then their selection without Senate consent is permissible. But the Supreme Court has explained in a case called Edmond v. U.S. that inferior officers are “officers whose work is directed and supervised at some level by others who were appointed by” the president. And acting cabinet members, just like permanent cabinet members, have no supervisor except the president himself, which means it is hard to explain how they could be “inferior officers” under this definition.

Read more at https://www.cato.org/blog/are-13-current-cabinet-members-unconstitutional