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[–] 15399107? 0 points 5 points (+5|-0) ago 

The reality is that either Congress has the Constitutional authority to delegate its powers to the Executive Branch, or it does not. There is no middle ground.

If it does, then the Whitaker appointment is Constitutional, because the Senate gave its consent when it voted to pass the Federal Vacancies Reform Act. The exact same reasoning is used to claim that much other significant legislation is Constitutional, from the War Powers Act to the Controlled Substances Act.

If it does not, then the entire edifice of the modern regulatory / administrative state is deeply Unconstitutional.

The interpretation of the "Necessary And Proper Clause" given to us by McCulloch vs. Maryland (and the way that interpretation has evolved in the 2 centuries since) leaves a hole in the armor of the Constitutional restrictions on what both the Executive and the Legislative branches may do more than large enough to authorize the hyper-tyrannical government that now inhabits Washington, D.C., even though no such authoritarian micromanagement of the lives of Americans would ever have been approved by those who wrote the Constitution. Congress may do whatever is "necessary" and "proper" to deal with real life situations, or so the Federal courts almost always rule. Temporarily handling vacancies of crucial Executive Branch offices by having Congress delegate its "advice and consent" authority to the President is completely in line with the sorts of things the courts have already allowed.

Given the above, the safe bet has to be that Trump has a majority of the Justices on his side. There's no way they don't know the consequences of ruling the other way.