Brian Darling, a former counsel for Sen. Rand Paul, takes to The Hill to argue, “Trump’s recess appointment power is constitutional and vital to his agenda.” While I strongly disagree with his conclusion, his argument highlights fundamental flaws in our system.
President-elect Trump’s victory is an end to business as usual in Washington.
His desire to use recess appointment authority is a clear expression of how serious he is about making the federal government responsive to the will of the American people. Our Founders never envisioned a situation where Congress would schedule make-believe “pro-forma” sessions of Congress for the sole purpose of blocking a president from appointing officials and implementing his agenda.
Alternatively, for the purpose of preserving the Senate’s Constitutionally-assigned role of vetting presidential appointments.
A recess appointment is not a complex idea. It is a constitutionally recognized power of a president to appoint officials in the executive branch when there are vacancies, and the Congress is in recess. In the Federalist No. 67, Alexander Hamilton refers to the recess appointment power as nothing more than a supplement … for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.”
Which is true. But, of course, Hamilton and the other Framers envisioned the Senate as a part-time body whose members would routinely be in their home states, several days’ ride from the capitol. The train, let alone the automobile or the airplane, would have been in the realm of science fiction had the genre been invented.
The problems of fitting a 21st century government into the constraints of a document written in the 18th century has been a recurring theme here. But, while Darling is too wistful for the thinking of the Framers for my tastes, the rest of his essay highlights the challenges of applying them to our present day.
The Senate is tasked with approving nominations, yet it is very slow to transact them.
When President Trump is sworn into office on Jan. 20, he face a huge obstruction to his agenda. Tradition holds that the Senate will convene to approve a handful of high-profile Cabinet officials, yet there will be thousands of other political appointed positions that will be vacant, thanks to the changing of party control of the White House. This massive number of empty jobs in the executive branch will make it virtually impossible for the Trump administration to conduct any business for months while waiting for the Senate to confirm hundreds of nominations. The party out of power will do all it can to sabotage Trump’s agenda.
Democrats in the Senate will obstruct by two methods. First, they will demand hearings on all nominations in addition to objecting to the waiver of rules expediting the consideration of nominations. Although the filibuster of nominations can be shut down with a simple majority, the time to transact nominations still is time consuming and is a de facto filibuster. The second tactic will be to demand so-called pro forma sessions of the House and Senate where nothing is done and for that they need Republicans to go along.
So, unlike Darling, I have no objection to Senators, even those from the opposition party, demanding an actual review of key nominations—especially given Trump’s penchant for nominating people who are demonstrably unqualified for their jobs by experience and/or temperament. Still, he’s absolutely right that it’s incredibly inefficient.
The Framers simply didn’t envision a government anywhere near as large as ours. They expected the President to appoint a relative handful of cabinet officers, ambassadors, and judges. Nowadays, there are some 4000 presidentially-appointed posts in our government, some 1200-1350 of those requiring Senate confirmation. (Indeed, the number is so high that experts literally can’t give us an exact number!) Even in exceedingly well-run administrations, where the incoming President has deep Washington experience and is nominating experienced insiders from the most recent administration of their party, it takes roughly eighteen months to get folks nominated and confirmed.
Conspiratorial couching notwithstanding, Darling is right that this hamstrings the new President’s agenda. And I agree with him that, within bounds, a new President is entitled to staff his administration and hit the ground running, keeping his promises to the people who elected him.
With the 2026 midterms on the horizon, and 20 Senate Republicans on the ballot, there is no time to waste. Congress will have a one-year lifespan to carry out the Trump agenda before a new election season starts. If Democrats slow-walk nominations and cause the Senate to spend significant amounts of time confirming nominees, time will be wasted on passing a solid reconciliation bill, cutting wasteful appropriations and passing reform-minded legislation. President-elect Trump will have a great 2025, if the Senate is not bogged down by Democrat obstructionism.
Again, Darling’s language gives the game away. But, leaving Trump aside, when a new President is elected—and especially when he’s elected with coattails that give him majorities in both Houses of Congress—it’s simply undemocratic for the opposition party to be able to run out the clock on that two-year window by obstructionism.
But Trump happens to be a test case for why we need Senate confirmation of presidential appointees. He has nominated person after person to key policymaking jobs who are simply unfit to hold those posts. While it’s possible (perhaps probable) that he’ll delegate the selection of various Deputy Secretary and Assistant Secretary posts to others, and that those nominees will be more conventional, there simply has to be a check on the process.
Darling’s preferred solution, then, is the wrong one:
The Constitution is specific when it comes to the power of the president with regard to nominations. Article II, Section 2 of the Constitution provides the president the power to appoint conditioned on seeking the “Advice and Consent of the Senate.” Article II, Section 3 of the Constitution provides the president the power to “fill up all Vacancies that may happen during the Recess of the Senate.” With Republican control of both chambers of Congress, there is no reason why Republicans could not actually go into recess when they are out of session without having fake pro forma sessions because they are scared that Democrats will resist.
One of my former Senate colleagues used to say “Break out the cots” when there was the hint of a filibuster and the possibility of senators fighting. It would take one night of Republicans rolling cots into the U.S. Senate to scare Democrats into letting the Senate go into recess. Remember, this is a U.S. Senate that is basically in session Tuesdays to Thursday for a full day’s work with frequent “State Work Periods” and the infamous “August recess” that lasts a month.
Our Founders never envisioned the creation of an administrative state that distracts Congress from its legislative duties with the confirmation of 1,200 appointees. Strategically using the constitutionally provided power of a recess appointment would guarantee that Trump preserves his political capital for the most meaningful debates ahead, Congress focuses itself on its primary duty of legislating and the American people experience a restoration of this great nation.
My longstanding position is the opposite. There is no reason for recess appointments to still be a thing; the Senate is in session for most of the year. While the artifice of bogus pro forma sessions to prevent their use annoys the institutionalist in me, they’re a necessary evil to avoid presidents taking advantage of a long-obsolete Constitutional provision.
No, the obvious solution is that we should not have 4000ish positions in the Executive branch of our government appointed by the President, much less 1200ish of them that require Senate confirmation.
The first instance I could easily find of my making this point was a March 2009 post titled “Political Appointment Process Broken,” detailing the frustrations the new Obama administration was having filling top-level posts.
[T]here are simply too many confirmable positions and too much room for lobbying and political backstabbing even on “at will” appointments such as [Chas] Freeman [Director of National Intelligence Dennis Blair’s choice to head the National Intelligence Council].
There’s got to be a better way.
I was talking recently with a senior European official, who remarked about the fact that so many European officials were in town anxious to talk to their counterparts in the new administration only to find out that, as Drezner points out in a separate post, there’s nobody in those posts yet.
By contrast, Europeans manage to hold elections and bring in not only the new head of government but a functioning ministry within days. It’s harder in the United States, since we don’t have a parliamentary system and thus have no shadow government. But, surely, we could figure out how to appoint 600 people and get them cleared for duty between the second Tuesday in November and noon on January 20th — a period of over ten weeks?
I highlighted the problem again as Obama was getting his second administration underway in April 2013 (“Massive Vacancies at Defense and State Departments“):
[T]here are far, far too many appointed positions in our government. Yes, the president ought to be able to put his stamp on policy, and bringing in outsiders of his selection at the top leadership levels helps facilitate that. It makes sense to have appointed cabinet secretaries , deputy secretaries, and even undersecretaries. But do we really need to appoint assistant secretaries and deputy assistant secretaries? Why not fill those from the ranks of the professionals of the Senior Executive Service?
And, in July 2021, I lamented “Biden’s Entirely Normal Vacancies.”
[I]t’s highly problematic that we probably won’t have a full Biden team in place for quite some time. And the 1200ish Senate-confirmed posts are just a fraction of the 7000-odd presidentially-appointed posts in the Plum Book. I haven’t the foggiest idea how many of those posts are still vacant or how it compares to past administrations.
My longstanding view is that this number should be trimmed radically. But that’s easier said than done since Presidents naturally want people in policy-determining posts who share their policy preferences.
And here we are again. I didn’t vote for Obama in 2008 or 2012. I didn’t vote for Trump in 2016, 2020, or 2024. Indeed, the only President for whom I’ve voted in the last twenty years was Biden in 2020. Regardless, in each case, I thought they should be able to get qualified nominees in place with speed and that there are far, far too many posts requiring appointment and confirmation.
As noted in the Biden post, I recognize that Presidents want to have their own people in key policy jobs. Trump, in particular, has regularly expressed frustration with a “Deep State” thwarting his desires. But every advanced democracy other than ours manages to execute the policies of the elected government without appointing thousands of officials to oversee its career professionals.
