Senate Must Preserve Rule of Law When Considering Benczkowski and Pruitt's Successor

by David Driesen

July 09, 2018

In addition to deciding the fate of a Supreme Court nominee, the Senate must soon consider whether to approve Brian Benczkowski as head of criminal enforcement for the Department of Justice and a nominee to replace Scott Pruitt as EPA administrator. In early 2017, I urged senators to fulfill their constitutional responsibilities by only approving nominees who would faithfully execute the laws of the United States. But the Senate approved Pruitt anyway, with disastrous results. The chamber now needs to play its constitutional role of protecting the rule of law from Trump’s relentless assault on our safeguards and our democracy.

The Constitution requires Senate confirmation, not to rubber stamp presidential appointments, but to ensure nominees are dedicated to carrying out the law. Alexander Hamilton explained in The Federalist Papers that the Constitution authorizes the Senate to disapprove of presidential nominees to discourage the president from nominating candidates "personally allied to him," lest we have office holders with the "pliancy to render them obsequious instruments of his pleasure." Thus, the founders required Senate approval of "officers of the United States" to make sure that the executive branch faithfully executes the law, rather than formulates policy on its own.

To that end, the Constitution requires all federal officeholders, including both cabinet secretaries and senators, to swear an oath, not to obey the president, but to obey the Constitution. And the Constitution establishes Congress, not the president, as the architect of our republic’s laws and policies. The framers’ rejection of fealty to the head of state marked a break with tradition, a change aimed at securing a rule of law. Senate approval would also help bring stability, argued Hamilton, preventing "violent. . . revolution in the officers of the government." 

We have seen what happens when senators shirk their constitutional responsibilities during the confirmation process. We tend to get rampant corruption and incompetence, as Pruitt’s tenure demonstrated.

Trump has signaled that he intends to use the appointments power to destroy the rule of law. In particular, he has indicated that prosecutors should lock up his political enemies, taking a page from Vladimir Putin's playbook. He also wants prosecutors to stay away from him and his cronies, no matter what criminal violations they commit. At the moment, he cannot sic prosecutors on his enemies or completely protect his cronies because experienced prosecutors committed to the rule of law run the Justice Department’s criminal division. But that could change if the Senate confirms Benczkowski to lead the criminal division.

Benczkowski has no prosecutorial experience, and he represented Russia’s Alfa Bank, which is under criminal investigation. Given ongoing Russian attempts to influence our elections on behalf of Trump and the indictments and guilty pleas of the people he hired to lead his campaign, the Senate must insist on a nominee with criminal prosecutorial experience, a long record of integrity, and no ties to Russia.

Similarly, the Senate must insist on an EPA nominee who will implement the laws protecting the environment, not undercut them. Trump does not aim to temper environmental standards; he aims to destroy (deconstruct, in Steve Bannon’s words) the EPA. And this administration has taken authoritarian steps to do that, prohibiting use of the terms “global warming" and "climate change” and firing agency employees who sought to check Pruitt’s corruption.

Trump will have to respond to public demand for environmental protection in some way, even if he destroys the EPA. He may do so by simply shutting down polluting businesses of people who cross him or compete with his friends’ businesses. He has already threatened Amazon with higher shipping rates and Harley-Davidson with punitive taxation. Autocrats punish their enemies and reward their friends so that they can enrich themselves. The framers established a rule of law because they saw the alternative as arbitrary autocracy (monarchy, in their terms). Environmental protections form part of the rule of law, implementing congressionally chosen policies through standards that tell industry in advance how much pollution they may emit. The alternative is arbitrary and unpredictable actions at the whim of the president and his henchman.  

The Senate should not cooperate in destroying the rule of law in order to achieve deregulatory ends that the public will not support if done directly and openly. Nor should the Senate risk our republic’s fate by approving nominees who do not have a long record of devotion to impartial and fair enforcement of our laws. The Senate can start to shore up Congress’ dismal reputation with the public by fulfilling its constitutional responsibility to preserve the rule of law from the risk of arbitrary executive rule.

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Also from David Driesen

David M. Driesen is a University Professor at Syracuse University College of Law, and an Adjunct Associate Professor at the State University of New York College of Environmental Science and Forestry. He holds a J.D. from Yale Law School. He is a member of the editorial board of the Carbon and Climate Law Review, published in Berlin and Environmental Law, published in Oxford.

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