Senate Republicans are set to change the upper chamber’s rules, enabling the majority to confirm a slate of executive branch nominees by a single vote instead of going through a laborious floor vote for each nominee. While the impending rule change has been made necessary by the historical intransigence of Senate Democrats, it marks yet another regrettable diminution of Senate power as the traditional checks and balances between our three branches of government decline.

Article 2, Section 2 of the Constitution limits the power of the president to control the executive branch by requiring the “advice and consent of the Senate” for all “ambassadors,” “ministers,” “consuls,” “judges of the Supreme Court,” and “all other Officers of the United States … established by law.” As the federal government’s size and scope grew, so did the number of offices requiring Senate approval, including local postmasters, customs collectors, and naval officers.

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The number of Senate-confirmed positions grew exponentially in two big spurts, first with President Franklin Roosevelt’s New Deal in the 1930s and then again with President Lyndon Johnson’s Great Society in the 1960s. While Congress granted the executive branch immense new powers during both periods, it also sought to retain some control and oversight of the executive branch by requiring that many of these new positions receive Senate consent.

Today, there are approximately 1,400 Senate-confirmed positions in the executive branch, and the simple mathematical reality is that the Senate does not have the time to go through a full debate and vote process for every one of them. Fortunately, the Senate has always had the power to suspend the body’s rules by unanimous consent, which is how the vast majority of nominees from both parties have been confirmed for generations. During former President Barack Obama’s first term, more than 90% of nominees were confirmed unanimously. That number fell to just 65% in President Donald Trump’s first term, then 57% under former President Joe Biden, and now, during Trump’s second term, not a single nominee has been passed by unanimous consent.

The absolute refusal of Senate Democrats to confirm a single Trump nominee by unanimous consent has made it understandably difficult for the Republican to exert his democratically legitimate right to control the executive branch. The “acting” officials in the posts waiting for a Senate-confirmed nominee do not have the same level of control as a Senate-confirmed officer.

Senate Democrats’ refusal to grant a single Trump nominee unanimous consent is sadly understandable, considering that Democratic Party voters are demanding “blood” and violence in all-out opposition to Trump’s legitimate electoral victory this past November. At one point, Majority Leader John Thune (R-SD) had been negotiating with Senate Democrats on a bipartisan rule change that could have sped up executive confirmations for both parties while protecting the rights of senators to delay suspect nominees or use the holding of a particular nominee to seek a policy change from the administration.

The Senate has three ways to change its rules. First, it can do so by itself with a 67-vote majority. This bipartisan method would allow both parties to preserve senators’ rights over the nomination process. Second, the Senate can change its rules statute. This requires a 60-vote threshold to pass the Senate, as well as a vote by the House and a signature by the president. The Senate’s rules on the budget reconciliation process were created this way.

Finally, the nuclear option requires just 50 votes to change the Senate’s rules. This is how then-Democratic Majority Leader Harry Reid changed the rules to require just 50 votes for judicial nominees in 2013, and it is how Minority Leader Chuck Schumer (D-NY) was going to change the rules in 2021 to end the legislative filibuster before he was foiled by then-Sens. Joe Manchin and Kyrsten Sinema. Manchin and Sinema were subsequently run out of the Democratic Party for failing to fall in line.

Thune has made some nice statements about trying to preserve Republican senators’ ability to hold nominees under his new rule change, but just as Reid tried to limit his nuclear rule change to just lower court nominees and not Supreme Court nominees, once a rule has been changed by the nuclear method, it can essentially be rewritten by the majority party whenever it wants. Thune might have every intention of honoring his new rule as he writes it as long as he is the majority leader, but the second the Democrats retake the Senate, those protections would be worthless.

DEMOCRATS AGAINST THE FOUNDING FATHERS, LINCOLN, AND KENNEDY

The underlying problem facing Senate Republicans is over half a century of power transfers from Congress to the executive branch. From the New Deal to the Great Society to the International Emergency Economic Powers Act, Congress has been too eager to give the president legislative powers in exchange for increasingly limited oversight. This, in combination with an increasingly polarized electorate, has created an incentive structure in which the Senate operates either as a rubber stamp for executive power or a complete roadblock to presidential control of the executive branch. 

Senate Democrats may have forced Thune’s hand today, but we are less of a constitutional republic as a result.