This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Presidents should generally be allowed to choose their own employees. Unless nominees fall below reasonable standards for honesty and competence, senators should vote to confirm them, even if they disagree intensely with their views. Obstructionism makes it hard for the executive branch to function; it also discourages good people from entering public service.
But that doesn't mean the Senate should give a blank check to Donald Trump. Senators should not confirm nominees who reject the mission of the very department they seek to lead.
To be sure, Democrats should not replicate their unconscionable behavior under President George W. Bush, when they were disrespectful of legitimate presidential prerogatives. (Republicans returned the favor, and then some, under President Barack Obama.) Exhibit No. 1: Theodore Olson, Bush's choice for solicitor general an extraordinarily distinguished lawyer with reverence for the Constitution. Exhibit No. 2 is John Graham, Bush's choice to lead the Office of Information and Regulatory Affairs: skeptical about many regulations, but a technocrat focused on the facts. Most Senate Democrats wrongly opposed both men.
To the extent that Trump is selecting people even remotely like Olson and Graham, the Senate should confirm them, quickly and even unanimously. As possible examples, consider Elaine Chao, his nominee for secretary of transportation, who was labor secretary under Bush and a real pro; or secretary of defense nominee James Mattis, who led U.S. Central Command from 2010 to 2013.
But other choices, including Scott Pruitt to lead the Environmental Protection Agency and Andy Puzder for the Department of Labor, fall in a different category. The reason isn't that they lack competence or integrity. It's that the Senate is entitled to insist that the head of a Cabinet-level department is committed to the legislative judgments that underlie the existence of that department.
Sure, it's fine if nominees want to reduce both regulatory and enforcement activity. But it's not fine for an EPA nominee to wish the EPA didn't exist. Under the Constitution, the central obligation of the executive branch is "to take Care that the Laws be faithfully executed."
On these counts, both Pruitt and Puzder deserve serious scrutiny. As Oklahoma attorney general, Pruitt acted well within the bounds of his role in attacking the EPA's Clean Power Plan, and in raising legal questions about the agency's authority to regulate greenhouse gases. That's hardly disqualifying.
But he also appears to have contempt for numerous other EPA rules, including several that build on, or belong in the same family with, clean air rules issued in the Bush administration. More than anything else, the Clean Air Act defines the EPA's mission. Pruitt shouldn't be confirmed unless he can give an awfully good answer to this question: "Do you support the Clean Air Act, and if so, exactly which regulations issued under that Act do you favor?"
As chief executive of CKE Restaurants (which owns Hardee's), Puzder has had an important management responsibility, and he should hardly be disqualified if his views (on, say, the minimum wage) sit poorly with Democrats. But under both Republicans and Democrats, the Department of Labor has had a distinctive national role, which is to protect the rights and interests of working people many of whom are struggling for economic survival, and almost 5,000 of whom are killed on the job every year.
Evidently a cost-conscious businessman, Puzder seems to like the idea of replacing workers with kiosks and automated technology. Fair enough. But he hasn't been named to lead the Department of Management. How, exactly, does he propose to safeguard the interests of people who are supposed to be protected by the Fair Labor Standards Act, the Family and Medical Leave Act and the Occupational Safety and Health Act?
In respecting Trump's prerogatives, senators must walk a delicate line. They shouldn't replicate the behavior of the Bush and Obama years, flyspecking a nominee's history to see if there was a tax issue 10 years ago, delaying the process because they disagree with the president, or taking acts and statements out of context to make reasonable people seem wild or hateful. Nominees, including Pruitt and Puzder, should be treated respectfully as human beings, not political footballs.
But no one has a right to high office. To deserve confirmation, nominees must, at a minimum, demonstrate a clear commitment to the fundamental mission of the department they seek to lead.
The burden of proof is on Pruitt and Puzder, and it's looking pretty heavy.
Cass Sunstein is a Bloomberg View columnist. He is the author of "The World According to Star Wars" and a co-author of "Nudge: Improving Decisions About Health, Wealth and Happiness."