By Hans von Spakovsky & Thomas Jipping, The Daily Signal | November 19, 2024
The new Republican majority in the 119th Congress has to prove its worth, beginning with how it handles President-elect Donald Trump’s Cabinet nominees. Trump should give Republican senators a chance to do so, but be ready to take action if they fail to carry out their sworn duty to quickly and efficiently give him the individuals he needs to run the executive branch.
The Constitution gives the president authority to nominate “officers of the United States” and, with the Senate’s consent, to appoint them. That’s the default process for executive branch officials, judges, and ambassadors. It is based on the principle of checks and balances between separated powers that is so important for our system of limited government.
But the Constitution also provides a backup should the normal process prove unworkable, which has happened all too often in recent years.
The president, under Article II, Section 2, “shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” In other words, the trade-off for bypassing the Senate is that a recess appointment can last no more than two years.
Trump has expressed his determination to get his new administration in place and get to work promptly, warning that he will use recess appointments if he has to. He’s right not only to put that on the table up front, but to expect Republicans to fulfill the obligation that comes with a constitutional role in the appointment process now that they have taken control of the Senate.
Republicans showed how this should be done at the beginning of Trump’s first term, at least with his top-level picks. The new Congress, with a 51-seat Senate majority, convened on Jan. 3, 2017. The relevant committees held hearings on 13 of Trump’s Cabinet picks even before he took office. On Jan. 20, immediately after taking the oath of office, Trump submitted those nominations to the Senate; they were confirmed in an average of 22 days.
Now, with a larger Senate majority, there’s no reason that Republicans can’t follow the same plan and act just as quickly.
Sen. John Thune, R-S.D., who will be Senate majority leader, needs to disclose his plan for carrying out the same expeditious hearing and confirmation process as soon as the new Senate convenes Jan. 3 and he takes control.
What happened with Trump’s Cabinet appointees in 2017 doesn’t mean that all nominees to sub-Cabinet positions, agency leadership, and various commissions were processed that smoothly. Unfortunately, there were long, unjustified delays during the first Trump term in confirming nominees for many lower-level but crucial posts that are essential in taking control of the executive branch.
That control is vital to carrying out the policy priorities of the president—the policies that the American people voted for when they elected Trump in 2016 and the policies they recently elected him to carry out on the economy, border security, and a host of other vital issues.
The long precedent of the Senate’s providing discretion in a president’s selections, with only rare exceptions, came to an end during Trump’s first term, as one of us wrote in April 2020. Cloture votes, needed to end Senate debate and proceed to a vote on a nominee, occurred only 15 times during the first term of Barack Obama; the Senate took only 30 such votes during the first terms of the previous nine presidents combined.
Democrats implemented obstructionism as a political tactic in the Senate, forcing almost 150 cloture votes on Trump’s executive branch nominations by April 2020, over three years into his first term.
Then-Majority Leader Harry Reid, D-Nev., had made the problem worse in December 2011, when the Senate adopted a resolution that it never would go into recess. Instead, the Senate since then has held pro forma sessions every three days in which a lone senator gavels the Senate into session and then gavels it back out.
As a result, there have been no recess appointments since then. The Senate basically took away a constitutional authority that was given to the president and used without objection for more than 200 years, including by Franklin Roosevelt, Dwight Eisenhower, and numerous other presidents of both major parties.
The best course is to start where the Constitution does—with the regular order of nomination and confirmation. If it is clear from the start that a particular nominee does not have the Senate votes to be confirmed for reasons that have nothing to do with his or her qualifications, or if the process for others is simply taking too long, then a recess appointment might be appropriate.
In 2014, the Supreme Court held in NLRB v. Canning that the Senate decides when and how long it is in recess, and that a recess must be at least 10 days long before the president can exercise his authority to make recess appointments.
For Trump to regain his recess appointment power, as the Senate’s new majority leader Thune has to end the pro forma sessions. In other words, stop the fake Senate sessions in which no work gets done.
That practice ought to end.
In the alternative, though hopefully not needed, another constitutional provision could be used against a recalcitrant Senate. In the Canning decision, the Supreme Court said Obama didn’t have the power to override a pro forma session and declare the Senate to be in recess. However, another constitutional provision could be used by Trump—or any president for that matter—that hasn’t been used before: the adjournment clause.
The adjournment clause, in Section 5 of Article I of the Constitution, provides that neither house of Congress may adjourn for more than three days without the “Consent of the other.” And if the House and Senate disagree on adjourning, Section 3 of Article II provides that the president “may adjourn them to such Time as he shall think proper.”
As Justice Stephen Breyer wrote in the majority opinion in Canning, these provisions give “the President (if he has enough allies in Congress) a way to force a recess.” The concurring opinion by Justice Antonin Scalia added: “Members of the President’s party in Congress may be able to prevent the Senate from holding pro forma sessions.”
Not a single justice dissented on that point. So the entire Supreme Court agreed, although not in a legally binding way, that a president could use the adjournment clause to force an adjournment of Congress long enough to make recess appointments—as long as there is a disagreement between the Senate and the House on when to adjourn.
What needs to happen is quite simple and straightforward: The Senate should get back to regular order where nominations are considered quickly and fairly without the long delays that have resulted in nominees putting their lives on hold for years while waiting for the Senate to act.
And the artificial bar created by the Senate with phony legislative sessions should end. Then, the president’s recess-appointment authority, which the Constitution’s Framers thought was necessary for a well-run executive branch, will be restored.
Hans von Spakovsky is the manager of the Election Law Reform Initiative and a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
Thomas Jipping is a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
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