The republicans are claiming that the law which requires nominees to pass background checks doesn’t apply — My understanding is that their argument is that it only applies to people nominated by a proper president and — since Donald isn’t a valid president until his inauguration, the law doesn’t apply to his nominees.
That’s a wonderful argument, but it unfortunately turns the other way as well. If Trump isn’t a ‘real’ president yet, then he has no authority to nominate cabinet members.. (the same way that he can’t order diplomats home). This would mean that nomination hearings occurring before the 20’th are little more than straw poll. That’s a problem because it really is useful to have a full cabinet seated the day that the new president steps into the oval office.
I see two solutions to this problem: the best seems to be delineating what is a proper function to devolve to an incoming president during the turnover period. My suggestion be:
any action that
- Is clearly germane to a smooth turnover process, and
- has no impact on the activities of the current (live) administration.
Under that rule, nominating a new cabinet would obviously pass, while Trump’s attempt to recall ambassadors last week would probably fail under section 1 and almost certainly fail under section 2.
The other solution to the logical deadlock would be for President Obama to echo Trump’s nomination tweets as actual executive orders. He could even do that now — both as a courtesy to Trump and as a way of engaging the laws meant to ensure that the Senate has the information needed to properly vet cabinet and other nominees.