2.5 - Checks on the Presidency
The Appointment Process
A classic example of Congress and the president clashing.
- Presidential Nomination: the president nominates people for jobs in the executive and judicial branches.
- Senate Confirmation (Advice and Consent): the Senate has to confirm nominees. The Constitution technically calls for "advice and consent," but in practice it's mostly become a yes or no vote (consent only).
- This process frequently sparks conflict, especially during divided government.
- Why the Framers built this in: it's checks and balances working the way Madison described in Federalist No. 51 (1788): "Ambition must be made to counteract ambition." Requiring Senate approval keeps the president from filling the government and the courts with anyone he wants.
Jobs needing Senate confirmation
- Cabinet secretaries
- Ambassadors
- Some Executive Office of the President positions
- All federal judges, including Supreme Court justices
White House Staff: the president's closest advisors working in the West Wing. These jobs don't need Senate confirmation, so the president can pick anyone.
Judicial Appointments: Long-Lasting Influence
Judicial nominations are often the most contentious moments of a presidency.
- Federal judges serve for life, so a single Supreme Court appointment can shape the Court for 30 or 40 years, making judicial appointments the president's longest-lasting legacy. Presidents also appoint hundreds of lower court judges (district courts and courts of appeals), who decide far more cases than the Supreme Court does.
- Presidents want nominees who match their ideology.
- If the opposing party controls the Senate, especially late in a president's term, they may try to block the nomination entirely.
- Example: when Justice Antonin Scalia died in February 2016, President Obama nominated Merrick Garland. The Republican-controlled Senate refused to hold hearings or a vote, saying the next president should fill the seat. After Trump won, he nominated Neil Gorsuch, who was confirmed in 2017.
Conflict Over the Congressional Agenda
The president and Congress often clash over the congressional agenda, the formal list of policies Congress is considering. This has intensified with polarization and divided government.
When Congress won't act on the president's priorities, the president sometimes turns to executive orders and directives to the bureaucracy instead.
Example: President Biden, unable to get student loan forgiveness through Congress, directed the Department of Education to implement it without new legislation.
The judicial check: courts can strike down executive actions as unconstitutional or illegal. In 2023, the Supreme Court struck down Biden's student loan plan, ruling it didn't comply with federal law.
Big picture
Presidential appointments are a constitutional battlefield, with the Senate's confirmation power checking the president directly. This is especially true for judicial nominations, since lifetime tenure means a single pick can shape the Court's ideology for decades. When Congress blocks a president's agenda, executive orders act as a workaround, but the judiciary can still strike them down, as it did with the student loan forgiveness plan.