Controversy Over Cabinet Secretary Choices is Nothing New in American History

Amongst the many perceived controversies of Donald Trump’s second term as U.S. president are some of his choices for cabinet secretaries. Of the 15 secretary positions, so far 11 have been confirmed by the Senate including controversial nominees like Pete Hegseth for Secretary of Defense and Robert Kennedy Jr. for Health and Human Services. That means there are still four awaiting confirmation, including provocative picks like Linda McMahon for Education. With a Republican Senate, chances are, all the nominees will be confirmed.

Historically speaking, very few nominees have ever been rejected; presidents knowing they need to get their picks past the Senate tend to only put forth names in which they are confident. Historically, only nine picks have ever been officially rejected by the Senate. I say officially because 19 others have been pulled out of the running like Matt Gaetz did earlier this year when he withdrew himself for consideration for Attorney General. So confident are most presidents that there was not a single issue with the first six presidents. But everything changed with the seventh — Andrew Jackson, the one many compare to Trump, who put forth the first nominee deemed too controversial to approve.

As always, first the Constitution. Article II, Section II states, “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

The courts in several cases have made interpretations of this clause, but there are two that are most important when it comes to Senate confirmation. First, the courts have made a distinction between principal and inferior offices. Principal offices like cabinet positions are subject to the appointment clause or need senate confirmation while other offices do not. What constitutes a principal or inferior office has changed many times over the year, especially as the government has grown, but the cabinet has always been considered a principal office. The second ruling the courts have made is that it is a three-step process for a principal office to receive the position. First, the president nominates a candidate. Second, the Senate confirms the nominee by a simple majority. Third, the president commissions the approved nominee. In other words, even after a candidate is confirmed, the president can change his mind and not give the final commission.

As mentioned earlier, this process is normally pretty smooth, especially when the president and Senate are from the same party. Yet, during Jackson’s presidency, for the first time the Senate deemed his choice for Treasury Secretary unacceptable — and for good reason. One of Jackson’s most infamous accomplishments was his war on the Second Bank of the United States (BUS). Jackson had always hated the idea of a national bank. He felt it unconstitutional as there was nothing in the Constitution about the creation of such an institution. He also felt it was corrupt and gave too much power to the wealthy elite over the common people. The charter for the second BUS was not set to end until 1836, but Jackson’s opponents believed they could use the BUS to their advantage and pushed a bill to recharter the BUS early. They knew Jackson would veto the recharter and they could then use that against Jackson when he ran for reelection in 1832. What Jackson’s opponents were not prepared for was Jackson’s popularity among the people and his decision to veto the BUS recharter was popular as well. Jackson had made it an issue of rich versus poor.

When Jackson easily won reelection, he took it as a mandate to kill the bank even before its 1836 end date. He planned  to take all the federal money out of the BUS and distribute it to state banks friendly to the Jackson administration. The problem was when Jackson instructed his Secretary of the Treasury, Louis McLane, to remove the money, he refused saying it would destroy the economy and Congress had not signed off.

Upset, Jackson removed McLane and appointed William J. Duane as the new Treasury Secretary. Cleary, Duane did not understand his assignment, because when he argued with Jackson about removing the money, he, too, was released. Jackson needed someone to follow orders blindly and so, turned to Roger Taney. Jackson waited until Senate was out of session and appointed Taney through a recess appointment. Recess appointments are constitutional and used often in the 19th century when the Senate did not meet as often. It allowed the president to temporally make appointments, which had to be confirmed when the Senate met again. With Congress not in session, Taney was appointed and did as he was instructed — removed federal money out of the BUS. Long story short, the death of the BUS was one of the major issues that led to the Panic of 1837, the largest depression the U.S. had seen to date.

Angered over the money being pulled, when Senate resumed in 1834, they rejected Taney’s appointment as Secretary of the Treasury, but the damage had been done. Unfortunately, Taney’s story was not done. In that same year, Jackson’s supporters took over the Senate during at the midterm elections. As a way of thanking Taney, Jackson nominated him, and the Senate confirmed him as Chief Justice of the Supreme Court. The man who was willing to hurt the country over political orders now controlled the highest court in the land. His most notable cases were fighting to return escaped slaves to bondage during the Amistad case and declaring slaves were not citizens in the Dred Scot case. It was his decision in the latter case to allow slavery in all states, even in the North, that help set the nation on course towards Civil War.

So, while all of Trump’s nominees will probably be confirmed by the Senate — even the controversial ones — there have been nominees so grievous, like Taney, that the Senate felt it necessary to say no.

James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com.