The Senate’s Duty: A Constitutional Check on Executive Power

In modern politics, political polarization often blinds lawmakers and other Americans and causes them to neglect important principles wisely embedded in our democracy’s foundation. Among those principles is the Constitution’s system of checks and balances, which were carefully designed to prevent abuses of power, cronyism, and incompetence. Today, some people are treating those principles as unnecessary inconveniences that should be tossed aside rather than important safeguards that must be adhered to.

In the last week, President-elect Donald Trump and other lawmakers, partisans, and influential figures have suggested that the Senate should automatically confirm or “rubber stamp” President-elect Trump’s nominees with “recess appointments” to key federal positions without vetting, oversight, or scrutiny. This approach betrays the intentions of the framers of the Constitution and threatens the delicate balance of power that provides guardrails that protect our democracy.

So yes, the Senate confirmation process is cumbersome and requires work. When I served three different senators, my bosses all served on the Senate Finance Committee, which oversaw certain appointments, including the Department of Health and Human Services and the Department of Treasury. Appointments were sometimes rejected but most often withdrawn when significant problems, conflicts, and even criminal threats became apparent during the confirmation process. This is important and serves the public interest — no matter if you are a Democrat or a Republican.

A Democracy, Not a Kingdom

To reject our nation’s carefully constructed system of checks and balances puts partisanship and “teamism” ahead of country. By asking the Senate to abandon its constitutional duty of “advice and consent” in favor of blind allegiance to the President’s whims has the effect of converting our democracy into a real-life version of the Game of Thrones, where leaders demand loyalty (“bend the knee”) above all else. This is precisely what the founders were rejecting when declaring our independence from King George III.

Our democracy is also not an episode of The Apprentice, which mimics a corporate boardroom where the boss’s word is final. Instead, our system of government is intended to be a carefully constructed republic, where no branch of government operates unchecked.

The founders specifically designed the Senate’s confirmation role to prevent the concentration of power in the executive branch. It is a mechanism that ensures leaders in federal agencies service the public interest (including those of children and families) rather than the whims or personal agendas of the President. These checks and balances are essential to our democracy.

Quite frankly, any impartial observer would recognize that some of the people the President-elect intends to nominate are not qualified and are unworthy to lead our nation’s government, which demands oversight over the nation’s military, our health care system, education, our natural resources, commerce, and our foreign policy. As taxpayers, we should demand serious people to lead our institutions rather than a series of daytime talk show hosts and Fox News guests. There is only one way to protect the people’s interests, and that is for the Senate, on a bipartisan basis, to take seriously its role of providing “advice and consent.”

The Wisdom of The Federalist Papers

The Senate’s critical role in confirming appointments was explained in the Federalist Papers, which were written by Alexander Hamilton, James Madison, and John Jay in 1787–1788. The purpose of the Federalist Papers was to help explain the rationale behind the Constitution’s design and purpose. Hamilton, Madison, and Jay tackled fundamental questions, such as: How can a government be strong enough to govern effectively, yet constrained enough to avoid tyranny? How can human ambition, which is inevitable, be harnessed and kept in check?

Though written over 230 years ago, the Federalist Papers remain one of the most authoritative and insightful sources for understanding the founders’ intentions on governance. Their arguments and guidance on the importance of checks and balances, the separation of powers, and the dangers of partisanship are timeless. Their vision was the creation of a thriving democracy rather than the authoritarian approach used by kings.

One of these essays, Federalist No. 76, explains how Senate confirmation acts as a “powerful, though in general silent operation” to deter unfit or abusive presidential appointments. In other words, knowing there is oversight and review, most presidents appoint people to run government agencies who are competent and ethical.

Federalist No. 51, explores the broader philosophy of checks and balances and famously reminds us:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

The founders understand that human beings are fallible and not angels. The Senate’s responsibility to provide “advice and consent” is not a mere formality, but instead, one of the Constitution’s “auxiliary precautions” designed to protect democracy and keep power in check.

As articulated by Hamilton in Federalist No. 76 and Madison in Federalist No. 51, this process is a cornerstone of good governance, designed to ensure that those entrusted with public office are qualified, competent, and aligned with the public interest — not merely with the President’s personal agenda. The President is supposed to serve the people, adhere to the Constitution, and act in the public interest – not their own.

The Constitutional Design: Shared Power to Prevent Abuse, Favoritism, and Corruption

The process for appointing federal officers, outlined in Article II, Section 2 of the Constitution, reflects the founders’ understanding of human nature and the dangers of unchecked power or authority. Thus, the President nominates individuals, but their appointment requires the Senate’s “advice and consent.” This deliberate sharing of authority was no accident; it was born from a distrust of consolidated power and tyranny.

In Federalist No. 76, Hamilton highlighted the risks of leaving appointment power solely in the President’s hands. Without Senate oversight, he warned, appointments could devolve into favoritism, nepotism, and self-serving political deals. Presidents might be tempted to appoint individuals based on “state prejudice, family connection, personal attachment, or a view to popularity,” rather than competence or merit.

By requiring Senate confirmation, the Constitution creates a barrier to such abuses. As Hamilton writes:

The possibility of rejection would be a strong motive to care in proposing. The danger to [the President’s] own reputation…from betraying a spirit of favoritism, or an unbecoming pursuit of popularity…could not fail to operate as a barrier.

Merit should matter rather than personal connections or loyalty. The process should ensure that nominees are not only the President’s choice but also reflect the broader will of the people and needs of the nation.

The Dangers of Partisanship

The founders also anticipated the corrosive effects of partisanship. In Federalist No. 10, Madison warned that “factions” (or political parties) could distort governance if allowed to dominate decision-making. He argued that the Constitution’s system of checks and balances would temper these partisan tendencies, forcing leaders to prioritize the public good over party loyalty.

When senators abdicate their constitutional duty out of partisan loyalty, they abandon this principle. Blind allegiance to a President’s agenda is not governance — it is submission. And submission to a single leader is antithetical to the vision of a thriving republic.

Hamilton expressed similar concerns in Federalist No. 1, where he wrote:

…a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government.

These words caution against leaders who manipulate public sentiment to consolidate power and urge vigilance to preserve independence and liberty.

The Senate’s Role Is Not Optional

The suggestion that the Senate should “simply ratify” appointments ignores not only the text of the Constitution but also the spirit behind its design. The framers understood that an unchecked executive branch would inevitably become a source of abuse. As Hamilton noted, even in governments prone to corruption, the presence of independent bodies like the Senate could play an important role in constraining power and protecting the public good.

Although the founders could not have foreseen the complexities of 21^st-century governance, their concerns about power and corruption remain strikingly relevant. Today, federal agencies shape policies that affect millions of Americans – from health care to environmental protections, education, and national security. The leaders of these agencies wield significant influence over our laws, policies, and national direction.

For example, children do not have the ability to vote, and yet, they are citizens of this country. Their reality is that the leaders of the departments and agencies, such as the Department of Education and the Department of Health and Human Services (HHS), or its agencies, including the Centers for Medicare and Medicaid Services (CMS), the Maternal and Child Health Bureau, the Administration for Children and Families (ACF), etc., play a significant role in affecting their health, education, development, safety, and well-being. Appointing unqualified or unscrupulous leaders to these departments and agencies would jeopardize the health, education, development, safety, and well-being of millions of children.

America’s 73 million children deserve better and more than just a “rubber stamp.”

Even Higher Stakes Today

The confirmation process may also be all the more important and relevant today after the Supreme Court ruled last year granting presidents broad immunity from prosecution for actions taken and decisions made in their official capacity. Consequently, every single presidential nominee should assure senators that they will adhere to protecting the Constitution and the laws that they would oversee in their administrative capacities rather than just the whims, political desires, or even illegal actions of an executive.

If the President were to make “recess appointments,” as President-elect Trump has called for and Sen. Rick Scott said he supports, or if the Senate simply approves nominees without scrutiny, it risks enabling unqualified or ethically compromised individuals to assume immense power.

This is disturbing and highlights why abdication of Senate authority or responsibility of its duty would betray the Constitution’s intent and weaken a critical check on the executive branch. In short, another guardrail protecting our democracy would be eliminated.

Moreover, the Senate’s responsibility to provide “advice and consent” is not a partisan issue; it is a constitutional mandate. Senators must approach their confirmation role with seriousness and independence, putting the national interest above party loyalty or political expediency. The founders entrusted the Senate with this duty for a reason.

As Hamilton warned in Federalist 76, “the advancement of the public service” should be the primary goal of all appointments. To ensure this, the Senate must rigorously examine every nominee, asking the hard questions and refusing to confirm those who fail to meet the highest standards of competence and character.

Anything less would dishonor the legacy of the Constitution and the principles of good governance upon which this nation was built. The Senate must take its role seriously — not just for today, but for the future of our democracy.

In the end, the framers’ wisdom remains our guiding light. The Senate’s role in confirming appointments is not a bureaucratic hurdle; it is a democratic necessity. Vigilance is the price of liberty, and today, it is up to us and our representatives to uphold their vision.

If you would like to help ensure that children and their needs, concerns, and best interests are protected and not ignored by policymakers, please consider joining us as an “Ambassador for Children” or becoming a paid subscriber to help us continue our work on behalf of children.