Can Trump refuse to fill key jobs?

President Trump has been in office for six months, yet the top ranks of the executive branch remain a lonely place. A vast array of key positions remain unfilled. Those include critical national security positions that would be expected in a foreign policy crisis or natural disaster to craft options and develop a response, all the while speaking within our own government and to foreign partners on behalf of a president who handpicked them.

This isn’t just a governance challenge or gridlocked politics, as most commentary has emphasized. It also raises significant legal questions — questions that the president should answer for the American people if he continues to deliberately leave key executive branch positions unfilled without involving Congress.

{mosads}The Constitution specifically contemplates that federal offices will be “established by law,” and Congress has passed numerous statutes that do so. In some cases, these statutes simply allow the president to fill executive branch positions. For example, one statute states that the president “may appoint” the associate attorney general.

Other statutes, however, use different, more mandatory language. These statutes pronounce that the president “shall appoint” vital officials such as the attorney general, other high-ranking Justice Department officials, and inspectors general across the federal government. Others mandate that “there is a secretary of Defense,” a deputy secretary of Defense, and many other senior positions at the Defense Department.

The dominant view in modern statutory interpretation is that the language used in these latter statutes typically indicates an affirmative obligation, not merely an available choice. That’s especially true in the context of these statutes, when Congress has used permissive language in some statutes and more mandatory language in others.

Indeed, there are many reasons that Congress might feel it is particularly imperative that certain offices are filled. Having a dedicated officer in place can help ensure that certain issues receive specific attention. It can also ensure that the Senate has the opportunity to review the qualifications of a prospective executive branch official before he or she takes office.

To be sure, the president is not required to have nominees ready for every office immediately after his inauguration, even if Congress states that he “shall” fill a slot. Such a rule would be consistent with neither history nor common sense. The presidency is a hard job, and incoming presidents need time to determine what various offices demand and to vet and select candidates based on that president’s needs.

But even if every president must be allowed a reasonable amount of time to fill positions, that’s not all this president has said he’s doing. Consistent with his professed goal of “draining the swamp,” Trump has explained that he’s left a number of executive branch vacant quite purposefully because he doesn’t want those roles to exist: “A lot of those jobs I don’t want to appoint because they’re unnecessary to have. We have so many people in government… You don’t need all those jobs.”

It’s not at all clear this is the president’s call to make alone. The Constitution, as noted above, explicitly contemplates that the legislative branch will create offices. Throughout our nation’s history, Congress has done so, such that it has a well-established and vital role to play in creating and organizing the executive branch that the president leads. In so doing, moreover, Congress has distinguished offices it believes the president has discretion to fill from those it believes he “shall” fill.

And it’s not at all clear what basis the president would have for not complying with this seemingly mandatory language. Think of the well-settled rules regarding impoundment of funds allocated by Congress: If the president cannot frustrate Congress’s will by unilaterally impounding funds Congress has demanded that he spend, on what basis may he decide to unilaterally override Congress’s judgment about what officers are necessary?

The legal question actually goes deeper than the statutes themselves. The Constitution requires the president both to “take care that the laws be faithfully executed” and to swear by oath that he will “faithfully execute” the demands of the office. Although these provisions have long been interpreted to allow the president discretion in how he implements the law, that’s very different from nullifying a statute over a simple disagreement with Congress’s decision to create an office.

What the president will ultimately decide to do with the current unfilled executive branch offices is still unclear, and an exhaustive review of all of the offices without nominees is beyond the scope of this short piece. We’re therefore not alleging that any particular vacancy poses a legal problem. But, as laid out above, the president’s stated desire to leave certain executive branch jobs unfilled “because they’re unnecessary” raises significant legal questions.

Thus, if the president nonetheless feels he can proceed in this fashion — for example, if he regards these statutes as properly read not to demand the filling of these roles, or if he views such a demand as unconstitutional — then he owes it to Congress and the American people to explain his understanding of the statutes and the requirements they impose on him. The administrative state, however one feels about it, was constructed by the joint efforts of Congress and the president. If the executive branch is going to unilaterally proceed with it “deconstruction,” it must, at a minimum, explain its basis for doing so.

Christopher Fonzone served as deputy assistant to President Obama, deputy White House counsel, and legal adviser to the National Security Council. He previously served as an attorney at the U.S. Department of Justice and the U.S. Department of Defense.

Joshua Geltzer is a visiting professor of law at Georgetown University and a fellow in the International Security Program at New America. He served as senior director for counterterrorism at the National Security Council under President Obama.

The views expressed by contributors are their own and are not the views of The Hill.