Dan Snow's History Hit - The US Cabinet

Episode Date: November 7, 2020

Lindsay Chervinsky joined me on the podcast to discuss the history of the US Cabinet. We also discussed the electoral college system and the Constitution.Subscribe to History Hit and you'll get access to hundreds of history documentaries, as well as every single episode of this podcast from the beginning (400 extra episodes). We're running live podcasts on Zoom, we've got weekly quizzes where you can win prizes, and exclusive subscriber only articles. It's the ultimate history package. Just go to historyhit.tv to subscribe. Use code 'pod1' at checkout for your first month free and the following month for just £/€/$1.

Hi everybody. Welcome to Dan Snow's History Hit. Got some more US electoral history on the podcast this time. It seems to be in the air at the moment. I'm recording this on Friday afternoon UK time. It looks like Pennsylvania has just flipped for Biden. People are calling on Trump and the Republicans to concede. That's going to be an ongoing adventure. And so this episode of the podcast hopefully will be useful to those looking ahead now. This is Dr. Lindsay Chavinsky, a historian of early America, the presidency and the government. She's a particular expert in the cabinet, the cabinet system, where it emerged from, how it would be used by subsequent presidents. We assumed that Joe Biden would go on to be the next president. We may be wrong. Let's see. Let's see what happens.

So forgive us if this podcast has aged badly. what happens. So forgive us if this podcast has aged badly. If you're interested in lots of other podcasts about US history, you can listen to all these podcasts without the ads. You head over to history.tv, use the code POD1, P-O-D-1, and you get a month for free, and your second month is one pound, one euro, or one dollar. In the meantime, everyone, enjoy the excellent Dr. Lindsay Chavinsky. In the meantime, everyone, enjoy the excellent Dr. Lindsay Chavinsky. Lindsay, thank you very much for coming on the podcast. Oh, it's my pleasure. It's a great distraction from checking the results constantly online. We have both been doing a lot of that. We're both learning a lot about the counties of Pennsylvania, Georgia. You are such an expert. Let's assume that Biden is the narrow favourite.

Let's assume he wins. It looks perhaps, although it's all very up in the air, it looks like Mitch McConnell may still have a narrow majority in the Senate. When it comes to building a cabinet, let's go back to the founding fathers. Let's go back to George Washington. In Britain in the 18th century, it was axiomatic the king could choose his ministers, but they had to have a support of parliament. Is that how it developed in the 18th century, it was axiomatic the king could choose his ministers, but they had to have a support of parliament. Is that how it developed in the US as well?

It's a great question. No, actually. So Americans were incredibly distrusting of the British cabinet because they really blamed those ministers for instigating the conflict that led to the war for independence. Not saying that's right, just that's, you know, what they felt. the war for independence. Not saying that's right, just that's what they felt. And so they actually rejected a proposal at the Constitutional Convention for a cabinet or some sort of executive council because they were so concerned that that same sort of shadowy institution would emerge around the presidency. And so Washington actually didn't meet with a cabinet for two and a half years into his administration. And he ended up pulling together the department secretaries who were always intended to be

his advisors, but really they were supposed to be one-on-one advisors. And that advice was supposed to be in writing so that there was evidence about who said what and who advocated which policies so they could be held accountable. So there was never this intention that there could be held accountable. So there was never this intention that there would be a cabinet, but it was really what Washington felt that he needed in order to actually govern effectively. That's interesting. And so at what stage does Congress say we want some oversight into who's in this cabinet? Well, that's really a remarkable part of this story because congressional oversight hasn't changed all that

much. When the first federal Congress created the departments in the summer of 1789, because the departments are mentioned in the Constitution, but they're not actually created by the Constitution, so that was up to Congress to do, they specified that the Senate would have confirmation ability for those positions. And that is pretty much the only oversight that continues to this day. Now, Congress can, of course, bring forth people in front of them to testify in front of committees. But as we've seen in the last couple of years, sometimes people just don't do it, or they assert executive privilege, or they say no. And unless Congress is willing to sort of enforce that oversight mechanism, there's not much that can happen. When presidents and perhaps presidents elect in the

case of Joe Biden over the next few months, perhaps, when they want to appoint a Secretary of State for Defense or Homeland Security, they need to get vote in the Senate, correct? They need approval. Yes, that's right. So from the very beginning, from 1789, when the departments were first created, the Senate started by approving those positions. The president would put forth the nominations and the Senate would vote yes or no. By and large, the history of the United States, the Senate gives presidents, especially first term presidents, a lot of leeway to craft the administration that they think will be best suited to help them govern. So there have actually only been nine rejected Senate appointments in the entire US history. There have been 15 nominees that have withdrawn their nomination

because either tax issues or legal conflicts or conflicts of interest come up in the investigations. But by and large, most nominees are actually confirmed because the Senate wants the president to feel comfortable with the people he's supposed to work with. You say it, but I remember back in way in the old days in 2008, 2009, when President-elect and President Obama was coming in, there was some pretty serious obstruction to his picks in the Senate. There were a couple of picks that ended up being withdrawn because there was conflict. And again, there have been nine people who have actually gone to vote and have been rejected. But generally, if a president is going to put forth a nomination, they're going

to think strategically about whether or not this person is going to have support. And sometimes, of course, things come up in whether they're the confirmation hearings, or they're the pre-confirmation hearing investigations. And that's where we see those 15 withdrawals. And Obama did have some of those as well. That's been a more common occurrence in the 20th century than in the 19th or the 18th centuries. And what we've seen recently in the Trump administration is there's been a lot of acting surgeries. Tell me why is that and what does that mean? So basically, if a secretary resigns or is fired, then the president is supposed to appoint a new secretary. And there's actually a law on the books called the Vacancies Act, which was passed relatively recently and was put in place in order to

ensure that the president didn't just rely on acting secretaries. Because the purpose of having that Senate confirmation is to ensure that the public and Congress has some oversight of whether this person who's running a huge and very important bureaucracy. Keep in mind, in the United States, the cabinet secretaries oversee things like Health and Human Services, the Department of Defense, the Department of the Treasury. So most of what we think of the federal government doing is overseen by these cabinet secretaries. So Congress wants to make sure that they're experienced and capable of

actually doing that management, but also that they are experienced and capable to give advice to the president. So if you have an acting secretary, they're not going through any of that sort of confirmation and the public in Congress doesn't have any ability to say, you know, I really don't think this person is right for that position. So in theory, under this Vacancies Act, Trump has been supposed to appoint a new secretary when there is an open position within 210 days. He's pretty much ignored that. The Department of Homeland Security, I think, had an opening for over 500 days. It was a record-setting opening.

But unless Congress, again, is willing to sort of enforce this mechanism that's designed to provide oversight, there's not a whole lot that can be done. The one example of the Department of Homeland Security is a little bit different because the courts did rule that the people who were in office did not have the authority to be making decisions. So the legal system is also another way that people can try and enforce compliance. I've talked to UK politicians who argue that there is more statutory power vested in Secretary of States in the UK than in the US. And I want to know if you feel that the position of a cabinet secretary in the US is a powerful one. It certainly can be. I think it depends on whether the person has the ear and the support of the president, because so much of that

statutory and legal authority goes through the executive branch, which is overseen by the president. And so if someone doesn't have a close relationship with whoever's in that high office or access to that person, their ability to influence policy or get the administration to do things that would be helpful to them is quite limited. Now, on the other hand, if they do have a close relationship, then they can be extraordinarily powerful, because the president is given so much leeway on a day to day basis to run the federal government. We've now got this kind of imperial presidency, going back to the earliest times. Do you see cabinet secretaries as being more important?

You know, we hear about Betsy DeVos, we hear about these people in Trump's cabinet, but I mean, they're dwarfed in their kind of popular recognition and impact and the voice by their overbearing commander in chief. So the executive branch was always, since Washington took office, he really worked hard to cultivate areas of authority in which the president had a lot of jurisdiction. And I think that's been something that a lot of historians have overlooked is actually how much power the president did have early on and is something that I've argued in my own scholarship.

But the secretaries were instrumental in making that happen, whether it be in international crises like the neutrality crisis in 1793, where France and Great Britain were at war and the United States was trying to stay out of it. And Washington essentially crafted diplomatic and foreign policy without any involvement from Congress. And that was huge because that was the first time that had happened. Or whether it's domestic policy in the Whiskey Rebellion in 1794, there was a rebellion over a whiskey tax in western Pennsylvania, and Washington moved pretty quickly to crush that rebellion, again, without participation from Congress. And the secretaries were really involved in encouraging Washington to take those

steps in helping him carve out that authority, not because it would make them more powerful per se, but because it would make the presidency more powerful. And they saw it as their job to boost presidential authority. Even though many secretaries are drawn from Congress? Yes, they are drawn from Congress, but they cannot. That's the really key distinction between the British system and the American system. There are actually clauses in the Constitution that prevent individuals from holding simultaneous positions in Congress and in the American system. There are actually clauses in the Constitution that prevent individuals from holding simultaneous positions in Congress and in the executive branch. So sometimes the most effective secretaries had a previous career in Congress because then they can liaise and build coalitions and, you know, get the backroom access, but they're not permitted

to continue to hold those positions. That is the best of the many innovations that they made and improvements to the British system. In my opinion, that is one of the best ones. I'm not actually so sure. I would have thought so until recently, but I have started to sort of question whether or not if there was that blend in powers, if it would force people to try and actually work together and build coalition. But maybe that's a starry-eyed version of what it is. And as you said, it's grass is greener. Land a Viking longship on island shores, scramble over the dunes of ancient Egypt,

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a Ubisoft podcast brought to you by History Hits. There are new episodes every week. Yeah, I think the interesting thing is that you have the worst of both worlds at the moment, because you have the slavish adherence in your legislature that we have to the executive branch, but at least we're able to get legislation through as a result, whereas you're not. So you've got this allegedly independent, you know, Republican caucus in the House, but they don't behave like it, right? They just do whatever they're told. So that's the, you have at the

moment got the worst of both worlds, de facto, I reckon. Yeah. Since we're talking about presidential power and Congress, it looks at the time of recording in early November, just after presidential election, that Biden will have either no majority in the Senate. His best option is now a tied Senate with Kamala Harris breaking the deadlock each time. So hardly a workable majority, best case scenario. What does that tell you as a historian about how Biden's presidency might be? Well, there's no doubt that it's going to be a huge challenge because in the past, bipartisan legislation, especially in moments of crisis, were facing a global pandemic, a crumbling economy. These are not unique circumstances to the United States, but we've been particularly terrible at handling them. And I would argue a falling international position, which is not helping international cooperation for either of those other issues.

So usually in moments of crisis, we do see some bipartisan congressional participation in legislation that will help people get back to work or keep their homes. legislation that will help people get back to work or keep their homes. It's not been clear under Mitch McConnell's rule whether or not that will be feasible going forward. I would like to think that if Democrats in the Senate are able to bring forth a bill that will provide some economic support for families in need, that Republicans could be convinced to do the right thing and help Americans who are struggling. I'm not super confident that that's going to be the case. So it's going to be unbelievably challenging. What I think is really important to point out is that assuming the results continue to move in the direction that we're seeing right now on November 5th, Biden will win by over 3 million votes in the popular count, probably closer to five once

all of California, New York, and Maryland's votes are counted. And the fact that that results in this deadlock is a demonstration of how unbelievably messed up our electoral college system actually is because it is disenfranchising people's votes. And so that's really the big takeaway. It's certainly nothing new in this election. That's been true for a long time. But it's a stark reminder of how unfair the system can actually be. Since you've said the magical word, we talk about this once every four years, the Electoral College, again, going back to the founding, just tell me what was the idea behind this kind of filter between normal electors, citizens, although white males, and the politicians they wanted to be in charge? Why did they put this

thing in between that? Well, there were two big reasons. First, most of the people framing the Constitution didn't really trust average Americans, and they thought that a direct vote would lead to a very sort of mob-like rule, and that they would change their mind a lot and go back and forth and it would be very chaotic. So that's the first reason. a very small white population and a very large African-American enslaved population. And so the Electoral College was a compromise to ensure that the white individuals in South Carolina retained the same amount of support and influence as the white individuals in places like Massachusetts. So the Electoral College's legacy is directly related to slavery and ensuring the power of white supremacy. Not a great legacy when you're thinking about what you want your government to look like. For today's purposes, what that means is someone in Wyoming, their vote counts for something like 100 times the power of someone in California. And I read a statistic the other day that said

that in the next five years, I think it's more than 50% of Americans are going to live in five states, which means that more than 50% of Americans are going to be represented by 10 senators. And the rest of the Americans will be represented by 40 senators. That's crazy. And I think antithetical to democratic principles that certain people are weighted and given so much more authority and power and influence than others. It did the second job real well. Did it do the first job? Did it ever act as a sort of a clearinghouse where you would vote for your good neighborhood burger, your honest sort of leading citizen, and then he would go and chat with everyone else and a president would emerge from that milieu. Did it ever sort of work like

that? Or did everyone just elect people who promised to install a quote on quote, kind of a party leader into the presidency? There are a couple of examples when it worked to sort of prevent mob rule, if you will, or what people thought of as mob rule. The first is in the election of 1824, when John Quincy Adams beat Andrew Jackson. And there were several candidates, so no one candidate got a plurality of the vote. And so the election was thrown to the House of Representatives. And while the election was in the House of Representatives, one of the candidates essentially dropped out and endorsed the other. Jackson cried foul because he lost because Henry Clay basically threw his votes to John Quincy Adams and in return

was given the position of Secretary of State. So maybe a little bit of a corrupt bargain, but that is exactly how the system was supposed to work. And I guarantee you if Jackson had gotten to Clay first and had been willing to make that deal, he would have done so. But a lot of people felt like that was a corrupt bargain because prior to the election going to the House, Jackson had in theory gotten more votes than John Quincy Adams had, but he hadn't yet reached that level in the Electoral College that would have secured victory. And Jackson was considered a man of the people. He spoke for the average white man, whereas John Quincy Adams was the son of a president and, you know, sort of the Harvard, Massachusetts elite. These are obviously still principles that Americans are struggling with

today. Similarly, in 1876, there was another compromise where Rutherford B. Hayes was given the election in return for withdrawing federal troops from South Carolina and Louisiana, which effectively ended Reconstruction and allowed the rise of Jim Crow legislation to really crop up in the South. So those are the two instances where it did work. It just, I'm not sure the outcomes were necessarily what people, in retrospect, think were a good idea. You're talking about the Electoral College. You're talking about the Senate as well, with its equal representation for various states. There was a thought that the Democrats might be able to get around some of these inbuilt problems

by having a majority in the Senate, getting rid of the filibuster, adding Puerto Rico, adding Washington, D.C. estates, expanding the map a bit. All of that now is almost certain not to happen. Just remind us, how do you amend your constitution? Just tell us how complicated that is. The process is certainly not an easy one. The bill, whatever it is, has to pass Congress with a two-thirds majority in both the Senate and the House of Representatives. Then it has to go to the states and the states have to ratify it with three quarters of the states. So something like a amendment to change the electoral college

system is probably not going to happen because states like Wyoming and South Dakota and North Dakota and Iowa really like having the power that they have in the system and don't really want to dilute that authority. So it is a challenging process. And that's why there are actually so few amendments, given how long the Constitution has actually been on the books. Do you feel there's a reverence for the Constitution that I still find remarkable in so many Americans, post-war scholars? and remarkable in so many Americans post-war scholars? Yeah, I struggle as an early American historian who has spent a lot of time reading the letters and the documents that came out around the ratification period. It is hard to view the document with the reverence that I think some

people feel today because that is not how the framers felt. They felt like it was the best possible outcome that they could achieve, but it was a series of compromises and they knew that there were huge problems that they had left unaddressed, like slavery, and they desperately hoped that future generations would be able to come up with creative solutions that they had not yet envisioned. And we know that because they said it. They were not subtle about this. And, you know, Washington wrote letters saying, it wasn't really what I hoped for. I had hoped we could do all of these other things, but I think it's the best option we could come up with. And so I hope people support it. That's not exactly, you know, like a hymnal response to the constitution. Now, granted,

it has been around for a really long time. Most countries don't leave their governments in place without real overhauls for this long. And I think that is because there are some ideas that are embodied in the system that are great. There are some ideas about trying to constantly perfect the union that are fantastic and should be adopted and have been inspirational. But I think that actually the best legacy for the framing generation and for the constitution is to accept that it is imperfect and to constantly be trying to revise it because that's what they expected we would do. And that's what they hoped we would do. So treating it as though it's this holy document that should never be touched, I think is quite foolish and unproductive. And treating it as though everyone at the time agreed what it meant is ludicrous,

because from the very beginning, they were arguing about what it meant. So there was no original intent enshrined in the document. And the thing I always think is so fascinating, whenever I get an early American historian on, it's the fact that founders thought naively they were going to get it, or did they? They thought maybe they could get away without the rage, the fury of party that they thought had polluted the British political system. So the Constitution makes no allowance for party. And that's a dominant feature of today's America. Yeah. And it was a dominant feature within like less than 10 years after the start of the new system. So they really kind of botched that one.

I think that they felt like parties could be such a bad thing and would lead to so much corruption. And they desperately hoped that if they could emphasize the virtuous Republican ideals, and this is little r Republican, virtuous Republican ideals of the nation, then they could inspire public servants to serve on behalf of the good of the people instead of a party or partisan spirit. Obviously, that completely failed. And it was doomed to fail because there were these competing visions from the very beginning about what the new nation should be embodied by Alexander Hamilton and Thomas Jefferson and their ideas for the country. So when you have completely divergent visions about where the country should go,

of course you're going to have parties. It just was a matter of when and where. Yeah. Okay. Well, listen, thank you. Thank you so much. That was a kind of random wide-ranging chat, Lindsay. Thank you for coming with me on that. How can people follow your work?

Absolutely. So I have a website, which is lindsaychervinsky.com. You can Google me, I'm the only one. So even if you spell it wrong, you'll probably get there. I'm on Twitter and very active on social media. My handle is LM Chervinsky, and that's CH Chervinsky. And on my website, you can sign up, I send out out a monthly newsletter which has a fun history story and podcasts things like that and always happy to talk with listeners and readers and all that stuff well we're gonna get you back on again i'm afraid so thank you i'm really pestering you and you've just written a brilliant book thank you yes absolutely in april i published a book called the cabinet george washington and the Creation of an American Institution, which I think will probably be pretty relevant in the coming weeks here. And it explores how this institution came about because it isn't actually in the Constitution. So it is available wherever

you like to buy books, both on the left and right side of the Atlantic and happy to talk to anyone about it. Thank you very much. My pleasure. Hi everyone, thanks for reaching the end of this podcast. Most of you are probably asleep, so I'm talking to your snoring forms, but anyone who's awake, it would be great if you could do me a quick favour, head over to wherever you get your podcasts and rate it five stars and then leave a nice glowing review. It makes a huge difference for some reason to how these podcasts do. Madness, I know, but them's the rules. Then we go further up the charts, more people listen to us and everything will be awesome. So thank you so much. Now sleep well. you