Piling on George Will

A bad column is worse than expected.

Reading Steven Taylor’s post “George Will’s Obtuseness,” I agreed with his broad conclusion that the octogenarian columnist was normalizing Donald Trump’s malfeasance by highlighting comparatively trivial transgressions by President Biden, but came away thinking Will could have written a much better column that didn’t do that. To whit: Biden would have an easier time making the case that Trump was a threat to the Constitution if he himself were more faithful in following it. Upon actually reading Will’s column, though, he doesn’t even make the case, even backhandedly, that Biden has violated his oath.

The thing that triggered my initial thought was Steven’s reaction to Will’s complaint about Biden appointing Ann Carlson as Acting Director of the NHTSA after she’d been rejected by the Senate for the post.

Yes, that’s right, it is “Trumpian” to have appointed an acting administrator of the National Highway Traffic Safety Administration. Note that Carlson did, in fact, resign on December 26th (which Will notes in the column). Whether she should have been allowed to have the position even on an acting basis, I will not here attempt to debate. I will just say that I know enough about government to say that this is a low-level problem as compared to, say, calling the Secretary of State of Georgia and asking him to find you the votes you need to win an election you lost.

By the way, it is disingenuous of Will to assert “it was clear that the Senate would not confirm her” when the real issue was Republican obstruction at the committee level.

My initial thought was that the President is obligated to follow the law of the land regardless of the gravity we might assign to a particular appointment and that “Republican obstruction” and “the Senate would not confirm her” are one and the same thing. Further, I remember very well complaints from Trump opponents that Trump was routinely violation the very same Vacancies Act by having people who weren’t Senate-confirmed fill roles requiring Senate confirmation.

But reading Will’s description undercuts the comparison:

The president has plenary power to nominate principal officers of the federal government without seeking prior advice from the Senate. The Senate has plenary power to confirm — or reject — nominees, and it can somewhat condition the president’s power by stipulating certain qualifications for particular offices.

Biden nominated Ann Carlson last March to be administrator of the National Highway Traffic Safety Administration. Two months later, when it was clear that the Senate would not confirm her, Biden withdrew the nomination. But less than five weeks after that, he named Carlson acting administrator. His impertinence would perhaps be limited, by the Vacancies Act, to 210 days, which would expireDec. 26. Furthermore, the Supreme Court has held that the act prohibits “any person who has been nominated to fill any vacant office from performing that office’s duties in an acting capacity.”

Biden, whose indifference to these legalities is Trumpian, is also unimpressed by several other provisions of the act that redundantly disqualify Carlson. In a masterpiece of understatement, Sen. Ted Cruz (R-Tex.) says, “It would be odd indeed for the law to prohibit someone to serve as acting while nomination is pending but to allow them to serve as acting after their nomination was pulled.”

In September, Cruz proposed an amendment to an appropriations bill that would have defunded Carlson by prohibiting anyone who was nominated and failed to get Senate approval for a position from being paid to act in that position. The Senate rejected the amendment 49-47, with only one Democrat (West Virginia’s Joe Manchin III, of course) supporting it.

One has to read past the huffing and puffing carefully to understand that Biden did nothing illegal here. The Vacancies Act prohibits a nominee for a Senate-confirmable office from serving in the role in an Acting capacity while the nomination is pending. Even Trump followed the letter of the law here, even rotating people who were next in the line of succession and, indeed, Senate-confirmed in the deputy role, out while the nomination was pending. But Biden didn’t violate it, either.

  • Biden nominated Carlson for the job
  • Presumably, someone else was filling said job in an Acting capacity
  • When it became clear the Senate would not confirm Carlson, Biden withdrew the nomination
  • Four weeks and change later, Biden appointed Carlson in an Acting capacity

Will is in a huff because Biden appointed Carlson to the role after the nomination was withdrawn. He quotes Cruz as saying, “It would be odd indeed for the law to prohibit someone to serve as acting while nomination is pending but to allow them to serve as acting after their nomination was pulled.” And, I concede, it would be. Alas, the next paragraph tells us that Cruz tried to get an amendment passed to the law making it clear and that it failed. Ipso facto, the law as it exists does indeed permit the very odd thing.

How common the practice is, I honestly don’t know. I do, however, recall President George W. Bush using a recess appointment to make John Bolton our UN Ambassador after it was clear that his nomination to the post wouldn’t make it through the Senate. Bush was reportedly reluctant to make the move, fearing that it would antagonize Senate Democrats, but ultimately did so and allowed Bolton to serve through the expiration of the legal limit of said appointment. Nearly eight years later, the Supreme Court more-or-less closed that particular loophole.

Will’s other objections (also noted by Steven):

Instances of Trump’s anti-constitutional behavior have been amply reported and deplored. Biden’s, less so — although they (e.g., the eviction moratoriumthe vaccine mandate, the cancellation of student debt), and judicial reprimands of them, have been frequent.

Aside from the silly parallelism that Steven highlights, none of these measures are anti-Constituitonal. I opposed the eviction moratorium and cancellation of student debt, for both policy and legal reasons,* but it’s hardly unusual for Presidents to test the boundaries of their Constitutional and statutory authority and defy the courts to tell them No. Indeed, I urged Biden to do just that on the vaccine mandates.

Regardless, Will’s column is even worse than I thought it was after Steven’s post. It’s not that he’s comparing Biden’s molehills to Trump’s mountains but that he’s treating Biden’s following the letter but perhaps not the spirit of the law as equivalent to Trump’s wanton criminality. It’s pure hackery.

_____________

*See my August 2021 post “Biden Illegally Extends Eviction Moratorium.” I wrote several posts on the issue of student debt relief, which was more complicated on both legal and policy grounds. But see, for example, Steven’s October 2022 post “Biden’s Student Loan Forgiveness Survives Initial Legal Challenges,” my March 2023 post “Biden Student Loan Forgiveness in Danger,” and my August 2023 post “Student Loan Forgiveness Done Right.”

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Jen says:

    Time for George Will to retire. What pure nonsense he’s written.

    Pile on away–Mr. Will needs to understand what a ridiculous attempt at equivalency this is. It’s frankly dangerous.

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  2. steve says:

    Thanks James. You articulated how I thought the Vacancies act works and I didnt understand how Biden had broken the law. He didnt. The problem is that since Will has written it most people will now believe it. I really dont know how to deal with eh constant normalizing of Trump. He constantly lies, says awful stuff, breaks the law but if it gets covered it looks like he is being attacked and just further cements his support from his followers and the large group oof people who dont really follow politics closely start to believe the claims he is just being attacked.

    As political scientists do you two have any idea what is built into our Constitution or our institutions that can stop this? I dont think anything exists. If someone is able to build a large enough following it looks like they can behave well outside of existing norms and still rise to and retain power. Indeed, I think the Constitution and most of our institutions are sort of designed with he idea that those in power or wanting to power will largely act within norms.

    Steve

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  3. MarkedMan says:

    Will is a prostitute, one who writes columns for his wealthy patrons rather than hopping in bed with them. I’ve thought this for 30 years, but perhaps the most telling example was his repeating, over two decades, the ridiculous “the planet is actually cooling” calumny pushed by big oil. As recently as 2021 he wrote a column about how climate change was a myth. What makes him a whore rather than just mistaken? He continues to cite “facts” and sources long since debunked. For instance, he got a few years out of chart that he claimed showed that the earth had cooled over the previous nine years. People familiar with the chart (Will never showed it) pointed out that he had merely cherry picked an anomalously cool year and an anomalously hot year from a much longer chart that clearly showed a dramatic upward trend. Given that he is an intelligent person, how did he address this when challenged? He didn’t. Like any good corporate spokesman he completely ignored it and continued repeating his nonsense at every opportunity.

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  4. gVOR10 says:

    Over at LGM Paul Campos quotes a piece by Rick Perlstein that is apt here,

    This is the infernal triangle that structures American politics.

    In one corner, a party consistently ratcheting toward authoritarianism, refusing as a matter of bedrock principle—otherwise they are “Republicans in Name Only”—to compromise with adversaries they frame as ineluctably eviland seek literally to destroy.

    In the second corner, a party that says that, in a political culture where there is not enough compromise, the self-evident solution is to offer more compromise—because those guys’ extremist fever, surely, is soon to break …

    And in the third corner, those agenda-setting elite political journalists, who frame the Democrats as one of the “sides” in a tragic folie à deux destroying a nation otherwise united and at peace with itself because both sides stubbornly … refuse to compromise.

    And here we are.

    George Will, along with a long, long list of “centrist” pundits are the key part of that third leg.

    At the cost of a free registration you can and should sign up for Perlstein’s newsletter and read the whole original Perlstein piece LGM links.

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  5. gVOR10 says:

    @MarkedMan:

    Will is a prostitute

    And as I noted in my comment on last night post by Dr. T, a very successful one.

    I suspect I’ve used this personal anecdote before, but I first read a George Will column in the 70s because I glanced at the byline and thought it was Gary Wills. Gary is a thorough researcher and applies (literally) Jesuit trained reasoning. I got three paragraphs into the sloppiness of the column and was wondering what happened, early onset Alzheimer’s? Then I realized it was George, not Gary. In the last forty plus years George hasn’t improved. He’s just gotten rich. He turned away from Trump only as a marketing decision, and this column may mark a turning back (1). As you say, a whore.
    ___
    (1) I’m getting scared by the number of institutions, WAPO at the forefront, that seem to be putting a toe in Quisling territory, just in case.

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  6. Slugger says:

    Let’s see now. Unemployment is down, inflation is down, gas at the pump is down, and the Dow Jones is up. However, in the appointment of someone to the National Traffic Safety Commission, not exactly the biggest job in government, Biden acted “Trumpian”. Weak sauce, George, weak sauce. Is only Trump allowed to be Trumpian? Is there a copyright?

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  7. John Cole says:

    The article was so bad I felt embarrassed for him. It also made me want to go back and read the books of his I read in the late 80’s and early 90’s to see if he was always this bad or just aging poorly.

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  8. charontwo says:

    @gVOR10:

    I think this is largely a New York Times problem. The Times is the Judas Goat and all the media sheep follow its lead.

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  9. DeD says:

    It’s pure hackery.

    Well, Dr. J., at least Will can’t be accused of not staying true to form…

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  10. SenyorDave says:

    I think Mr. Will should go back to writing about things he actually knows, like how awful it is that people wear blue jeans when they are flying.

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  11. gVOR10 says:

    @charontwo:

    I think this is largely a New York Times problem. The Times is the Judas Goat and all the media sheep follow its lead.

    A few months ago I would have whole heartedly agreed with you. But a couple things I’ve read lately give me a bit of hope.

    A couple weeks ago I commented here on a long piece in The Economist by ex-NYT editorial page editor James Bennet, complaining about being fired over an op-ed by Tom Cotton calling on Trump to send in troops to quell the BLM demonstrations/riots. A piece that could be seen as reasonable, if you strip it of all context. His 17,000 word kvetch came down to he’d spent his whole career practicing the voice from nowhere and a bunch of whippersnappers in the newsroom got him fired. In passing he notes that NYT has been doing very well in transitioning to a digital era and their marketing people said their new readers were 95% liberal and wanted NYT to be both liberal and widely respected.

    The second is a piece by Dan Froomkin at Press Watch. He says the kids in the newsrooms are pushing back. He speaks of the élite editors and political writers who are deeply invested in “not taking sides”.

    On the other side, you’ll increasingly find everyone else: not just the younger and more diverse journalists but the ones from other desks – like international, investigative, business, lifestyles, culture – whose sense of self is defined by more than just not taking sides. It’s defined by informing the public of the truth.

    I have lately felt NYT was being a bit less credulous about RW BS and less bothsides.

    Maybe, just maybe, NYT is recognizing what Perry Bacon said at WAPO a month ago,

    I want a political media that prioritizes truth and accuracy over neutrality between the two parties.

    WAPO, however, seems to be quite clearly drifting right. Perhaps they’ve become overly concerned with Jeff Bezos’ taxes.

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