Outside the Beltway

President-Elect Trump Pushing For Recess Appointments

In which I agree with Trump about the problem, but NOT the solution

Matt Bernius · Tuesday, November 12, 2024 · 10 comments

In the last 48 hours, President-elect Donald Trump has begun to announce nominees for key positions in the administration, including Secretary of State, National Security Advisor, and Ambassador to the United Nations. Many of these positions are among the approximately 1,300 roles that require Senate Approval. The Senate Approval process has historically been slow and full of opportunities for partisan delay. As a result, the process has been a thorn in the sides of past Presidents. And in a legitimate case of “bothsiderism” there have been many attempts by Chief Executives from both parties to find ways to “short circuit” the process. In the past day, Donald Trump has kicked that process up a notch or two.

From CNN:

President-elect Donald Trump is demanding Republican senators vying to be majority leader support recess appointments for his nominees — a way for presidents to essentially bypass Congress that has recently been blocked by the minority party.

All three senators running in this week’s secret-ballot election quickly signaled support for the idea, even though Democrats could filibuster motions to go into recess and therefore block those recess appointments from happening.

“Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner,” Trump posted on X on Sunday. “Sometimes the votes can take two years, or more. This is what they did four years ago, and we cannot let it happen again. We need positions filled IMMEDIATELY!”

Trump’s demand for recess appointments resurfaces a decades-old clash between presidents and Capitol Hill leaders — one in which the Supreme Court has previously weighed in favor of the Senate’s powers.

Both chambers have to pass a resolution to go into recess, which would give Senate Democrats an opportunity to filibuster the resolution and essentially block its passage. During Trump’s first term, for example, he was blocked by the Senate from using recess appointments to replace then-Attorney General Jeff Sessions.

Looking at this issue, I think we need to break the discussion up into two parts to evaluate: the problem and the solution.

In terms of the problem, I agree with Trump on the underlying issue–namely that the Senate Approval process is broken. Part of this problem is one of scale: the idea that approximately 1,300 presidential appointments require Senate approval is–frankly–absurd. This is a situation where the size and complexity of the Federal Government has necessarily grown to a degree that the Founders could never have imagined or planned for. As a result, the Senate is expected to approve more appointments than makes sense, especially given that the body is performing other legislative functions at the same time.

The issues with this become even more apparent when you look at the statistics. The Political Appointee Tracker follows ~800 of the appointed positions that require Senate confirmation. Almost 4 years into his Presidency, Biden has nominated people for 649 of those positions (note there is no requirement for a President to fill all positions). Only 569 have been confirmed, and there are still 80 nominees under consideration.

So, with the issue identified, we then turn ourselves to the solution, and this is where I’m a hard NOPE on Trump’s proposal. Trump’s comment could mean that he wants the Senate to go back to taking real recesses (not gaveling in each day when they are on break to prevent a true recess).

However, it can also be interpreted (admittedly in a less generous reading) as suggesting that soon after the inauguration, the Senate should go into a recess session to push through some or all of his nominees via recess appointments.

It’s hard to succinctly articulate how such a move would be a radical expansion of the Imperial Presidency. Thankfully, I don’t have to because I can turn to National Review writer and conservative lawyer Ed Whalen for the breakdown:

1. Under Article II of the Constitution, the president’s primary power to appoint his principal officers is subject to the condition that his nominations receive the “Advice and Consent of the Senate.” As Hamilton explains in Federalist No. 76, the Senate’s power to approve or reject nominations “in ordinary cases” provides “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.” […]

In short, it’s a fundamental general feature of our system of separated powers that the president shall submit his nominations for major offices to the Senate for approval. That feature plays a vital role in helping to ensure that the president makes quality picks. […]

[A]s Hamilton explains in Federalist No. 67, [recess appointments represent an] “auxiliary method of appointment” is “nothing more than a supplement” to the “general mode of appointing officers of the United States” and is to used “in cases in which the general method was inadequate.”

2. Trump has no conceivable need to make recess appointments of his Cabinet officials. Republicans will control the Senate with an ample majority. Quality nominations that Trump makes will be promptly confirmed. Indeed, just as it did in 2017, the Senate can hold hearings on Trump’s intended nominations in the period between the convening of the Senate on January 3 and Trump’s inauguration on January 20.

Trump’s suggestion that he faced extraordinary delays in getting his major Cabinet officials confirmed four years ago is belied by the record. The Senate confirmed his nominees for Secretary of Defense and Secretary of Homeland Security on January 20, 2017, his Secretary of State on February 1, his Attorney General on February 8, and his Secretary of Treasury on February 13.

3. Such a scheme would require that the Senate go into recess for 10 days on or shortly after January 20. It is difficult to imagine a more shameful display of subservience by a Senate majority leader.

4. This scheme also faces a major obstacle. Federal law (5 U.S.C. § 5503) generally bars paying a salary (or any other compensation) to a recess appointee.

As Whalen notes, there are steps that the Senate has taken in recent years (in particular during the last Trump administration) to help streamline the process. In 2019, then Senate Leader Mitch McConnell pushed through a change to Senate Rules that greatly limited debate on many positions:

Senate Majority Leader Mitch McConnell, R-Ky., used a complex procedural maneuver, known as the nuclear option, to cut debate for lower-level nominees from 30 hours to two hours. The change does not apply to Cabinet-level nominees, federal appeals judges, members of some boards and commissions or the Supreme Court. It also does not change the 60-vote requirement to advance legislation.

All Senate Democrats opposed the move, and they were joined by two Republicans — Susan Collins of Maine and Mike Lee of Utah.

As Whalen points out, this means that many (if not most) of those 1,300 positions are able to be quickly (for nominees) advanced through the Senate. There’s very little the Democrats can do to gum up the work for Trump.

Granted, that rule change still subjects high-level appointments to higher scrutiny. Here is Whalen again arguing against recess appointments for those positions:

The main concern about enabling recess appointments is that a president would abuse the authority to install unworthy candidates to key positions. If a Senate majority leader were to commit in advance to the Senate’s taking a formal recess, he would be encouraging that abuse.

This gets to an important point about this attempt at an end run-around: this could easily be aimed both at Democrats AND Republicans. One of the things Trump learned during his first Administration is that, despite being the leader of his party, Senators are not necessarily rubber stamps on appointees. Throughout his first term, Trump found that his own party would, from time to time, reject his nominees. This was especially the case in the first year of his administration.

We’re going to have a lot of discussions about “the rule of law” in the months to come. This is an example of one of those cases. The Consitution provides remedies for this. The next Senate leader, like McConnell before them, could push through a rules change that further constrains the use of the filibuster in the approval process. While I personally wouldn’t love it, it would be keeping with the Consitution and maintaining some degree of the separation of powers the Framers intended.

But giving into this demand would be a dereliction of duty. More importantly, in the name of “expediency” it would be just another step on the path towards the type of imperial solitary leader that the Framers were explicitly rebelling against.