The Constitution and the President’s Cabinet

President-elect Donald Trump is close to completing the process of nominating people to his Cabinet. He must select the heads of 15 executive departments and have them confirmed by the Senate by merely a simple majority, thanks to recent rule changes. Filling a Cabinet has been on the top of every President-elect’s agenda since George Washington set the precedent and formed the very first one.

The term “Cabinet” is never mentioned in the Constitution itself. James Madison was the first President to use the term, basing it on the British Privy Council. The Cabinet has its constitutional basis in Article 2, Section 2, which states that the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices…” Later, it mentions these heads as some of the people that must be confirmed by the Senate.

The First Congress established four departments: State, War, Treasury and Post Office (which would later lose its Cabinet status). Washington later signed the Judiciary Act, which created the position of Attorney General around which a Justice Department would grow. Through the years, different executive departments have been added, and in some cases subtracted, to serve the country’s evolving needs. The most recent addition is Homeland Security, established in 2002 in response to the September 11th terrorist attacks.

Washington sought to have regional and ideological balance in his Cabinet, so he chose Thomas Jefferson for State, Henry Knox for War, Alexander Hamilton for Treasury, Samuel Osgood for Postmaster General, and Edmund Randolph for Attorney General. Washington held meetings regularly, trusting these men as his closest advisors. (Noticeably absent is Vice President John Adams; the Vice President would not be considered a major part of the cabinet until much later.)

There are not many requirements to be a Cabinet member. One cannot be a member of Congress, as no one is allowed to serve in the executive and legislative branches at the same time. There are also no age or birthplace requirements. Secretaries of State Henry Kissinger and Madeleine Albright were both born outside of the United States, as was Hamilton. While there was no problem with these individuals serving in their posts, they were not allowed to be a part of the presidential line of succession. Similarly, anyone under the age of 35 is also removed from the line of succession. The only true obstacles, then, are an extensive FBI background check and a successful Senate confirmation.

While the term “Senate confirmation” sounds daunting—especially when you consider the controversial and high-profile nature of modern Supreme Court nominations–Cabinet nominations are, for the most part, quite tame. The process is often a formality, as Congress tends to defer to the President in selecting the Cabinet he needs to do the work of the executive branch. Only nine Cabinet nominees have ever been rejected by the Senate. If a nominee is expected to have trouble, he or she typically takes his or her name out of the running.

What has been interesting, however, is the recent polarization of Cabinet nominations during the Obama presidency. President Obama’s appointees have waited the longest on average of any President since Jimmy Carter. Attorney General Loretta Lynch holds the “record”: 167 days from nomination to confirmation.

Still, President-elect Trump is well on his way to filling out his Cabinet, having announced picks for Treasury, Defense, Justice and State. Only a few remain. He is mostly on pace with past transitions, and with a Republican-controlled Congress, most, if not all, of his nominees should experience relatively smooth confirmation hearings.

Chris Calabrese is an intern at the National Constitution Center. He is also a recent graduate of St. Joseph’s University.