Opinion - Trump’s likely bid to buck Senate’s advice and consent role would be nothing new

Making predictions in politics is difficult. This is especially true with Donald Trump, who has turned his unpredictability into one of his leading political assets.

Making predictions about how most of the media treats Trump, on the other hand, is easy.

Take for example, Trump’s recent nomination of Kash Patel as the head of the FBI.

Although Patel’s confirmation by the Senate is possible, given some of his past statements it promises to be a hairy one that could divide Republicans.

Trump could easily avoid this by naming Patel the deputy director (which is not Senate confirmed) and then either firing the current FBI chief, Christopher Wray, or convincing him to retire. Patel will then, automatically by statute, ascend to the top slot.

So: Patel becomes head of the FBI without Senate confirmation. (Yes, he would only be acting, and thus be limited in statutory authority and, maybe, time.) It’s fairly obvious to anyone who understands how the presidential personnel process works.

In response, most media outlets, despite their inner monologues recently about how they need to do better on covering Trump — will go berserk. They’ve never been able to control themselves when it comes to Trump, and no amount of faux-introspection will change that. Words like “unprecedented,” “power grab,” and even “wannabe dictator” and “threat to democracy” will be dusted off and thrown around gratuitously.

What you won’t hear most of them say is that President Barack Obama tried pretty much the same thing.

Yes, that’s right. And if you are among the 99.9 percent who either forgot that or never knew it, here is what happened.

Obama, like many presidents before him (and the one currently measuring the drapes) chafed at what he considered to be Senate overreach with their Constitutional “advise and consent” authority when it comes to executive branch appointments.

Whether Obama was upset about the constant delay (“We just won’t have the floor time to get to your Ambassadors this month, Mr. President”) or the occasional shakedown (“We really need to have you change a policy over at DOT before we can take up your Undersecretary of Agriculture for Rural Development…,”) is hard to know. But most certainly, the Senate practice of going into “pro-forma” sessions had something to do with Obama’s ire.

Pro-forma sessions are the quasi-fiction in which the Senate engages to pretend that it is in session when it is not. It usually has somebody come into the chamber, preside for a few minutes over some meaningless housekeeping business, then bang the gavel — all while the rest of the Senate is out of town.

The Senate does this for one express reason: to deny the president (any president) the ability to do recess appointments. Such presidential recess appointments are explicitly permissible under the Constitution if the Senate recesses. But the Senate doesn’t like them, as they strip them of that “advise and consent” authority.

Obama’s plan was creative. He decided to simply ignore the “pro forma” sessions, taking the position, in plain terms, that they were a joke. He appointed, amongst others, Richard Cordray as director of the Consumer Financial Protection Bureau despite the Senate being in pro-forma session.

By the way: Obama’s “loyalists” at the Department of Justice, led by Eric Holder, blessed that approach, saying it was entirely consistent with the law.

The Third Circuit disagreed. So did the D.C. Circuit. And when the issue ultimately made its way up to the Supreme Court, Team Obama got its teeth kicked in, losing 9-0.

So much for an “independent” Justice Department.

But Obama tried. He tried to go around the Senate because he considered the then-current application of “advise and consent” an unreasonable restriction on his executive authority. In his own words, he “refuse[d] to take ‘no’ for an answer” from the Senate.

When Obama tried this creative strategy to avoid Senate confirmation, was he “flouting the Constitution?” or “making an unprecedent power grab?” or even “threatening democracy?” Nope. As the New York Times described it, he was merely “bucking the Senate.”
Fairly tame compared to what you can expect to hear when Trump tires something similar.

Tension between the executive and legislative branches is nothing new. Obama’s attempt to wrest power from another branch wasn’t the first attempt; Trump’s won’t be the last.

What will be different is how much of the media portrays it.

And that is a prediction you can take to the bank.

Mick Mulvaney, a former congressman from South Carolina, is a contributor to NewsNation. He served as director of the Office of Management and Budget, acting director of the Consumer Financial Protection Bureau and White House chief of staff under President Donald Trump.

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