Since the Senate started holding hearings on President Donald Trump’s Cabinet and Cabinet-level nominations, Senate Democrats have employed a variety of tactics to delay the votes needed for Trump to put the government’s leaders in place.

Republicans have called Democrats’ actions “unprecedented,” but are they?

A review by The Daily Signal of committee actions for first-term Cabinet and Cabinet-level nominees dating back to the initial days of President George W. Bush’s administration—the earliest for which electronic congressional records could be found—shows that efforts from the minority party to tie up nominations are rare and a break from Senate tradition.

“In the Senate, there’s a presumption that the president is entitled to pick the Cabinet,” Jack Pitney, a political science professor at Claremont McKenna College in California, told The Daily Signal.

“Things are different given the general polarization of the Senate and the specific atmosphere that we’re seeing in the early weeks of the Trump administration,” Pitney said.

By the start of the new year, Senate Democrats had mapped out their plan to stall confirmation votes for eight of Trump’s Cabinet nominations and draw out the confirmation process into March.

And since Trump’s Jan. 20 inauguration, Democrats serving on three Senate committees have stalled votes by boycotting meetings—that is, refusing to show up. For Trump’s two predecessors, some nominees passed out of their respective committees without any objection from either party.

But not only are Democrats stalling votes at the committee level—the first stop for a presidential nominee requiring Senate confirmation—the minority party is expected to employ other tactics to stymie approval of nominees once they advance to the Senate floor.

“President Trump has the fewest Cabinet secretaries confirmed at this point than any other incoming president since George Washington,” Senate Majority Leader Mitch McConnell, R-Ky., said Tuesday. He called on Democrats to end “the unprecedented delay” holding up confirmation of Trump’s nominees.

The recent actions of Senate Democrats break from Senate tradition and split from the precedent members of both parties set for past presidents and their agency leads.

In fact, senators in both parties boycotted just two Cabinet-level nominees over the past 17 years, and neither were during a president’s first term.

Trump Administration Nominees

Last month, Democrats on the Senate Judiciary Committee made lengthy speeches to delay a vote on Trump’s nominee for attorney general, Sen. Jeff Sessions, R-Ala.

Judiciary Chairman Chuck Grassley, a Republican from Iowa, ultimately delayed the committee’s vote on Sessions by one day. The panel then voted along party lines to advance Sessions’ nomination, 11-9.

In more blatant displays of disapproval for Trump’s Cabinet nominees, Democrats on two Senate panels boycotted committee votes on three nominees: for the secretaries of both Health and Human Services and Treasury, and for the administrator of the Environmental Protection Agency.

Trump nominated Rep. Tom Price, R-Ga., to head the Department of Health and Human Services, Wall Street executive Steve Mnuchin to lead the Department of Treasury, and Oklahoma Attorney General Scott Pruitt to serve as administrator of the Environmental Protection Agency.

The Finance Committee oversees the Price and Mnuchin nominations, and the Environment and Public Works Committee oversees the Pruitt nomination.

Last month, Democrats on both committees refused to appear at meetings held to vote on the nominees.

For the Finance Committee, Democrats’ boycott represented a first: In modern history, the panel never before boycotted a confirmation vote.

In addition to boycotting the vote by the Environment and Public Works Committee, Democrats tasked with overseeing Pruitt’s nomination submitted 1,078 questions to the Oklahoma attorney general.

Because Democrats refused to show up, they forced Republicans to delay votes on Price, Mnuchin and Pruitt.

Obama Administration Nominees

In 2013, at the beginning of President Barack Obama’s second term, all eight Republicans on the Environment and Public Works Committee boycotted a committee vote on Gina McCarthy, his pick to lead the Environmental Protection Agency.

GOP senators also asked McCarthy to respond to 1,075 written questions about the agency she sought to lead.

After Republicans dropped their boycott, McCarthy, who replaced Lisa Jackson at the EPA, ultimately advanced to the Senate in a 10-8 vote along party lines.

By comparison, Jackson received 157 questions from Senate Republicans after her initial confirmation hearing in 2009.

After Obama tapped agency heads during his first term, Republicans and Democrats took swift action to confirm his nominees.

The Senate unanimously confirmed seven of Obama’s Cabinet and Cabinet-level nominees immediately after his inauguration, and many received bipartisan support at the committee level.

Secretary of State Hillary Clinton, for example, won approval from the Foreign Relations Committee after a 16-1 vote.

Obama’s pick for attorney general, Eric Holder, also received support from both sides of the aisle. Holder advanced to the Senate floor after the Judiciary Committee’s 17-2 vote.

The Senate confirmed six more of Obama’s selections in the week following his inauguration.

Bush Administration Nominees

More than two year into President George W. Bush’s first term, Senate Democrats mounted opposition to his pick to lead the EPA, Utah Gov. Michael Leavitt.

Bush selected Leavitt in 2003 to replace his first EPA administrator, Christine Todd Whitman, and Democrats sought to tie up Leavitt’s nomination by refusing to attend a committee meeting to advance his nomination.

Senate Democrats later asked Leavitt a total of 305 questions after his confirmation hearing.

Once Democrats allowed his nomination to proceed, the Environment and Public Works Committee approved Leavitt by a bipartisan vote of 16-2.

Like Obama, the Senate confirmed eight of Bush’s nominees on his Inauguration Day.

Bush’s most controversial nominee, John Ashcroft for attorney general, faced opposition from Democrats on the Judiciary Committee. However, Ashcroft advanced to the Senate floor after a 10-8 vote.

Opening the Door

Though the opposition to Trump’s Cabinet nominees is unprecedented, Pitney, of Claremont McKenna, said it’s likely such attempts to stall nominations will continue.

“You’re not going to get away from the polarization any time in the next few years,” he said. “What we’re seeing now is just the latest chapter of a story that’s been unfolding for decades.” (For more from the author of “Trump Faces Senate Boycotts on Nominees That Bush, Obama Didn’t” please click HERE)

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If you want to see the difference between a federal judge who follows the rule of law and a federal judge who ignores laws he doesn’t like in order to reach a preferred public policy outcome, just compare the two district court decisions issued in Washington state and Massachusetts over President Donald Trump’s immigration executive order.

Contrary to the “travel ban” label, the executive order temporarily suspended the granting of visas from seven failed and failing countries that are supplying many of the terrorists plaguing the world.

Despite what Judge James Robart of the Western District of Washington says, Trump acted fully within the statutory authority granted to him by Congress. The temporary restraining order issued by Robart on Feb. 3 is unjustified and has no basis in the law or the Constitution.

This fact is obvious from an examination of his seven-page order, which contains absolutely no discussion whatsoever of what law or constitutional provision the president has supposedly violated. That temporary restraining order is now on an emergency appeal before a panel of the 9th U.S. Circuit Court of Appeals.

Contrast that with the 21-page opinion issued by Massachusetts District Court Judge Nathaniel Gorton that was also issued on Feb. 3.

Unlike Robart, who totally ignored the federal statute (8 U.S.C. §1182(f)) cited by Trump in his executive order, Gorton bases his decision denying the temporary restraining order on an examination of the extensive power given to the president under that statute, which gives the president the authority to suspend the entry of any aliens or class of aliens into the U.S. if he believes it “would be detrimental to the interests of the United States.” And he can do so “for such period as he shall deem necessary.”

That is exactly what the president has done. The order signed on Jan. 27 on “Protecting the Nation From Foreign Terrorist Entry Into the United States” suspends for 90 days the issuance of visas to anyone trying to enter the U.S. from seven countries that even the Obama administration identified as “countries of concern” because of their terrorism histories.

This has been done, as Gorton explains and as the administration has made clear, in order to “ensure that resources are available to review screening procedures and that adequate standards are in place to protect against terrorist attacks.”

As Gorton notes, “the decision to prevent aliens from entering the country is a ‘fundamental sovereign attribute’ realized through the legislative and executive branches that is ‘largely immune from judicial control.’”

As the U.S. Supreme Court said in 2004 in U.S. v. Flores-Montano, “The government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.”

In this case, Congress—which under the Constitution has complete authority over immigration—passed a statute providing the president the authority to suspend the entry of aliens into the country.

According to Gorton, in “light of the ‘plenary congressional power to make polices and rules for exclusion of aliens … which pursuant to 8 U.S.C. 1182(f), has been delegated to the president, the court concludes that the government’s reasons, as provided in the [executive order], are facially legitimate and bona fide.”

No federal judge, including Robart, has the authority to substitute his judgment for that of the president when it comes to making a decision on what is detrimental to the national security and foreign policy interests of the nation.

But that is exactly what he did.

Robart’s opinion ends with a claim that seems like a joke.

He says that “fundamental” to his work is “a vigilant recognition that [the court] is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches.”

Instead, says Robart, his job is “limited” to “ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution.”

Yet Robart provides no discussion of the Constitution or the federal statute that applies to this executive order and the actions of the president.

Given that there is no legal basis for his decision and the issuance of a temporary restraining order, the only basis for his decision is his judgment on the “wisdom” of Trump’s executive order.

Gorton recognized the public policy choices being made with this executive order. He discussed the “considerations of both sides with respect to a balancing of the hardships” involved.

On one side, the government is trying to implement “an effective immigration regime that ensures the safety of all Americans,” something that is “undoubtedly difficult.” On the other side, there is a “hardship to the professional and personal lives” of aliens trying to enter the country.

But it is not up to a judge to make that policy choice. The judge’s only role is to review whether the president’s action is authorized by the Constitution and federal law.

There is no question that the executive order meets both of those requirements. We can only hope that the 9th Circuit Court of Appeals follows the law and does not make the same mistake that Robart made. (For more from the author of “Trump’s Executive Order on Immigration Is Both Legal and Constitutional” please click HERE)

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When the 115th Congress arrived Jan. 3, the majority had an ambitious agenda. With Republicans in control of the House and Senate, and soon the White House, it was the first time in 10 years they could advance their policy agenda unobstructed by Democrats.

Yet a month later, the GOP-led Congress has produced just three bills for President Donald Trump to sign: a waiver allowing retired Marine Gen. James Mattis to serve as defense secretary, a joint resolution repealing the Obama administration’s stream protection rule, and another resolution reversing a Securities and Exchange Commission rule pertaining to energy companies.

Republicans have delayed action on campaign promises such as repealing Obamacare and defunding Planned Parenthood.

In the Senate, Republicans are struggling to overcome Democrat delays in confirming Trump’s Cabinet nominees.

Senate Majority Leader Mitch McConnell said those delays have made the Senate’s job unnecessarily difficult. In a statement provided to The Daily Signal, the Kentucky Republican said:

Democrat obstruction has reached such extreme levels that the smallest number of Cabinet officials have been confirmed in modern history at this point in a presidency. It’s a historic break in tradition, a departure from how newly elected presidents of both parties have been treated in decades past.

The result is growing frustration among conservatives that the GOP isn’t moving quickly enough to capitalize on Trump’s first 100 days and the limited window of opportunity in Washington.

This week, for instance, the House will work just two days due to a Democrat retreat. Last month, Republicans decamped for three days for their own retreat in Philadelphia.

Last year, when House Speaker Paul Ryan outlined his “A Better Way” agenda, the Wisconsin Republican billed it as the GOP’s blueprint for the coming year.

“This is our game plan for 2017,” Ryan told reporters in October.

A month later, after Trump’s victory in November, a jubilant Ryan boasted about the forthcoming “dawn of a new unified Republican government.”

“If we are going to put our country back on the right track, we have got to be bold and we have to go big. This country is expecting absolutely no less,” Ryan said in November. “We want to make sure we hit the ground running in January, so we can deliver on the new president’s agenda.”

In the days ahead, we'll work with President-elect Trump's transition team to lay out an ambitious path for 2017. pic.twitter.com/FV2mdy3oM6

— Paul Ryan (@SpeakerRyan) November 17, 2016

In December, Ryan told CBS News’ “60 Minutes” that “the first bill we’re going to be working on is our Obamacare legislation.”

And while the House took the first step Jan. 13 by approving a resolution establishing the framework for repeal, lawmakers missed their Jan. 27 deadline to draft the Obamacare repeal legislation.

A senior congressional aide told The Daily Signal that Republicans are determined to “provide Obamacare relief for struggling Americans.”

“The Senate began consideration the first day of the new congressional session,” the aide said of the drive to repeal and replace Obamacare, adding:

After [the Senate passed] that resolution, which is the start of the repeal process, the House passed the resolution immediately upon receiving it. House committees are now writing the reconciliation [bill] to repeal and potentially even include some replace.

Ryan also said defunding Planned Parenthood would be included in the budget reconciliation package, just as it was in a 2015 bill the Republicans passed and President Barack Obama vetoed early in 2016.

The latest timeline, according an internal House schedule leaked last week, suggests the reconciliation bill could be considered in March—although it could slip until April.

Congress’ lack of progress on the Obamacare repeal and Planned Parenthood defunding stand in contrast to the activity of the 111th Congress during Obama’s first weeks in office.

In 2009, Obama signed into law three significant bills passed by the Democrat-led Congress. They included the American Recovery and Reinvestment Act, a $787 billion economic stimulus package; the Lilly Ledbetter Fair Pay Act, which proponents said would end pay discrimination against women; and the Children’s Health Insurance Program Reauthorization Act, which provided states with new funding and programming for children’s health care coverage through Medicaid.

Congress introduced each bill either right before or soon after Obama was sworn into office; Obama signed them within his first 36 days.

Congress passed the Lilly Ledbetter bill Jan. 27, the children’s health bill Feb. 4, and the stimulus package Feb. 13.

So far in the 115th Congress, lawmakers passed the Mattis waiver, approved a resolution undoing requirements for coal mining operations, and approved another resolution loosening restrictions on the extraction of natural resources.

In his first two weeks as president, Trump has kept busy despite the lack of congressional activity. He signed eight executive orders, including one that begins the process of dismantling Obamacare.

The budget reconciliation bill passed by Congress in 2015 repealed Obamacare and defunded Planned Parenthood. Although that bill could not repeal the entirety of Obamacare due to Senate rules, it could dismantle a large portion.

Rachel Bovard, a former Senate aide who is director of policy services at The Heritage Foundation, said Congress could have presented a repeal bill to Trump on Jan. 20, the day he took the oath of office.

“Congress has been a disappointment so far, considering the fact that there is unified control of the government,” Bovard told The Daily Signal. “Congress could have had an Obamacare repeal bill on Trump’s desk at 12:01 p.m. on Inauguration Day, especially if they’d used the 2015 repeal bill that passed both Houses.”

“There is no excuse for the lack of action,” she added. “And, indeed, by delaying it, they’ve allowed the debate to get muddled, slowed the momentum considerably, and in doing so made the task that much harder.”

With midterm elections coming Nov. 6, 2018, some conservatives argue that Republicans have no place to hide.

“The Washington, D.C., Republicans are out of excuses,” Drew Ryun, national director of the Madison Project, a conservative political action committee, said in an email to The Daily Signal. Ryun added:

There are no more electoral goal posts to move. They have the House, the Senate, and with Trump in the White House. For years they have campaigned on the promises of repealing Obamacare and defunding Planned Parenthood.

Unfortunately for them, their inaction is proving two things: They may really be a party without ideas as well as one that pays lip service to its base with no intent of action. This is a dangerous position for them to be in, with midterms just around the corner.

(For more from the author of “Republican Lawmakers yet to Deliver Early Wins for Trump” please click HERE)

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Recent scandals in the Department of Veterans Affairs and the Internal Revenue Service demonstrated that it’s almost impossible to fire federal employees, many of whom reportedly intend to go rogue by not implementing President Donald Trump’s agenda.

Conservatives are hopeful the time has come for civil service reform that would rein in this permanent class of government workers who have voiced outright hostility to the new administration. Some have even called it the “fourth branch of government” or “alt-government.”

“This is a situation where people voted and elected a president who is lawfully trying to complete those tasks [he promised in the campaign], while unelected bureaucrats are willing to overturn the will of the people,” Ben Wilterdink, director of the American Legislative Exchange Council’s (ALEC) Task Force on Commerce, Insurance and Economic Development, told The Daily Signal.

Among federal employees, about 95 percent of political contributions went to Democrat Hillary Clinton during the presidential race, according to an analysis by The Hill.

Some of those federal workers are now in consultation with departed Obama administration officials to determine how they can push back against the Trump administration’s agenda, The Washington Post reported last week.

At the State Department, for example, nearly 1,000 government workers signed a letter protesting Trump’s executive order on refugees. A few days later, Trump had to fire acting Attorney General Sally Yates after she announced she wouldn’t defend the administration’s refugee policy.

White House press secretary Sean Spicer said State Department employees who oppose the policy “should either get with the program, or they can go.”

“If a federal employee doesn’t like the ideological foundation or likely outcomes of a presidential directive, it doesn’t mean that the directive is not legal. It means that the views of the federal employee are in conflict with the views of the president who runs the federal government,” said Neil Siefring, vice president of Hilltop Advocacy and a former Republican House staffer, in a column for The Daily Caller.

“In that instance,” Siefring added, “the solution should not be to resist the actions of the president in their professional capacity as a career civil servant in the workplace. The solution is for that federal employee to honorably resign, not actively or passively hamper the White House.”

What if an employee won’t resign? Addressing the problem with the federal workforce won’t be easy, according to experts interviewed by The Daily Signal.

“You can fire federal employees, it’s just that nobody wants to put up with the process,” Don Devine, former director of the Office of Personnel Management during the Reagan administration, told The Daily Signal.

Multiple appeals can be made through the U.S. Merit Systems Protection Board, the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board.

“It’s almost impossible to discipline employees because it can be appealed to through the merit system, the labor relations systems, or through the EEOC,” Devine said. “We don’t have a civil service system; we have a dual civil service-labor relations system.”

During the Obama administration, two of its biggest scandals involved the IRS and Department of Veterans Affairs. In 2013, a Treasury Department inspector general report determined the IRS had been targeting conservative groups. In 2014, a VA inspector general’s report revealed falsified appointments in which some veterans died while waiting for care.

Years later, conservatives remain frustrated that federal workers weren’t held accountable.

“I will take your IRS employees and raise you the EPA, where story after story, a worker was viewing porn on work time and couldn’t be fired because the process is fraught with appeals,” Wilterdink said. “It’s hard to argue we have an accountable government when someone can’t be fired for years at a time.”

Earlier this year, the U.S. House revived the Holman Rule, named after a Democrat congressman who introduced it in 1876. It would allow lawmakers to cut the pay of individual federal workers or a government program.

There are other proposals for holding federal workers accountable. House Oversight and Government Reform Chairman Jason Chaffetz, R-Utah, introduced a bill in January to hold seriously tax delinquent people ineligible for federal civilian employment, federal contracts, or government grants. This bill was proposed in response to IRS data that found more than 100,000 federal civilian employees owed more than $1 billion in unpaid taxes at the end of fiscal year 2015.

Adding to the challenge is the process commonly known as burrowing. Frequently, political appointees from one administration convert to a career position that comes with civil service protections, allowing them to continue implementing policy—or resisting the new administration’s approach.

The Pendleton Civil Service Reform Act of 1883 was passed to stop raw political party appointments from securing federal government jobs, or a spoils system. The law introduced the merit system into hiring practices and made numerous civil service positions untouchable after they were filled.

However, burrowing has caused a de facto spoils system, Wilterdink said, because, “the pendulum has swung so far to protecting federal employees” that it allows administrations to keep their people in office long term.

Significant reform doesn’t mean recreating a spoils system, according to Robert Moffit, a senior fellow at The Heritage Foundation who was an assistant Office of Personnel Management director during the Reagan administration. Moffit said a balanced approach would be more desirable.

“You need to have strong managers in each agency to make sure the president’s agenda is properly executed,” Moffit told The Daily Signal. “You must also have a bright line between career and non-career staff so there is no politicization of the merit system.”

Moffit also supports legislation to allow the president to order the firing of career officials who either “broke the law or severely undermined the public’s trust.”

“Even President [Barack] Obama referred to what IRS officials did as outrageous and nothing happened,” Moffit said. “The VA matter is still unresolved. The people responsible for those waiting lists aren’t accountable and people died.” (For more from the author of “Rogue Federal Bureaucrats Threaten Trump’s Agenda” please click HERE)

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