Weiss Consents to Warren's Advice

Liberals are cheering Senator Elizabeth Warren for derailing the appointment of Antonio Weiss, President Barack Obama's nominee to be undersecretary of domestic finance at the Treasury Department. But by essentially spiking his nomination, she may have done him a favor.

Rather than endure the tough questioning (and predictable grandstanding) that comes with a Senate confirmation hearing, Weiss will waltz into the Treasury Department as a counselor to Secretary Jack Lew, a job that does not require Senate approval. There, he may have more influence over a broader range of issues than he would have had as an undersecretary. Whispering in the ear of the king can be more powerful than being one of his feudal vassals.

Yes, Warren gained a political victory. It comes at a cost, however -- to the federal government’s ability to attract talent. Obviously people who leave the private sector for the public are willing to accept less pay in exchange for more power. But their calculus may change if a prerequisite for a government job is a public flogging.

Of course the legislative branch acts as an important check on executive authority, and the Constitution subjects the president’s power of appointment to the “advice and consent” of the Senate. But it's reasonable to ask how far its advice needs to go, and how much of its consent is necessary.

As the federal government has grown, so has Congress's reach into the agencies. There are now approximately 1,200 executive branch jobs that require Senate confirmation, mostly deputies and other underlings who report to bosses who also must be confirmed by the Senate. More than 30 positions at the Department of Defense, for instance, require Senate approval, including the assistant secretary for legislative affairs -- the poor soul whose job it is to deal with Congress.

The Senate has granted itself veto authority over nearly every agency’s senior staff, as well as those the president seeks to place on small commissions and offices, such as the Old-Age and Survivors Insurance Trust Fund or the Foreign Claims Settlements Commission. (No, senators probably don’t know what these boards do, either.)

In 2012, Congress trimmed the number of positions requiring Senate approval by 163. It was a good first step. Moving 1,200 appointments through hearings and votes is not a good use of the Senate’s time. Moreover, delays can hurt agency productivity and produce power vacuums that get filled by less qualified people exempt from Senate approval.

Limiting the use of advice and consent is consistent with the Constitution, which authorizes Congress to remove itself from reviewing the appointment of “inferior officers.” In a 1997 ruling, the Supreme Court defined such “inferior officers” as those whose boss is someone other than the president. Yet the president picks his executive-office staff without any advice and consent, while hundreds of agency staffers must endure Senate hearings.

Clearly this system is out of whack. Maybe further congressional oversight of White House appointments is not such a great idea; the president deserves a lot of leeway in choosing who works for him. But the Senate should certainly be more selective about where and how far its advice and consent applies.