2.5 Checks on the Presidency

The appointment power lets the president nominate top officials, but Article II requires the Senate's “advice and consent.” Confirmation takes a simple majority. Nominees usually go through a hearing before the relevant Senate committee, such as the Judiciary Committee for judges, before the full Senate votes.

Positions that need confirmation include Cabinet secretaries, ambassadors, heads of many agencies, a few top posts in the Executive Office of the President (such as the budget director), federal district and appeals court judges, and Supreme Court justices. In total there are well over a thousand such positions, so confirmation fights can leave offices empty for months.

The Cabinet is made up of the heads of the 15 executive departments, plus other officials the president gives Cabinet rank. Presidents use the Cabinet to run the departments and carry out their agenda, but department heads also answer to Congress for their budgets.

• Divided government: when the other party controls the Senate, it can delay or reject nominees.
• Polarization: confirmation votes are increasingly close to party-line, even for nominees once seen as routine.
• High stakes for courts: a lifetime judgeship can shape law for decades, so interest groups on all sides mobilize.
• Senate rules: a single senator can place a hold on a nominee. Since 2013 and 2017, though, all nominations can be advanced by simple majority, which makes the majority party's control of the Senate decisive.

Article III says federal judges hold office “during good behaviour,” which in practice means life tenure: they serve until they die, retire or are impeached and removed. A president serves at most eight years, but judges they appoint may serve 25 or 30 years or more. That's why presidents tend to choose younger nominees who share their judicial philosophy, and why Supreme Court vacancies draw so much attention.

The Senate has rejected Supreme Court nominees. In 1987 it voted down Robert Bork 58–42, a fight so intense that “borking” became slang for a fierce campaign against a nominee. Other nominees have withdrawn before a vote.

• Veto override (two-thirds of both chambers)
• Power of the purse: Congress can refuse to fund the president's priorities
• Treaty ratification (two-thirds of the Senate); for example, the Senate refused to approve the Treaty of Versailles after World War I
• Oversight hearings and investigations
• Impeachment and removal
• Judicial review: courts can strike down executive actions, as in Youngstown Sheet & Tube Co. v. Sawyer (1952), when the Court blocked Truman's seizure of steel mills during the Korean War

When presidents can't get bills through Congress, they often turn to unilateral tools: executive orders, directions to agencies on how to enforce laws, and executive agreements. These let presidents act quickly, but they have weaknesses. They can be challenged in court, Congress can cut off funding, and the next president can reverse them with the stroke of a pen, so policy made this way can be unstable.