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“Speaker Mike Johnson (R-La.) left open the possibility of enabling President-elect Trump to appoint his Cabinet by recess appointment, bypassing the need for approval from the Senate. ‘We’ll evaluate that at the appropriate time, and we’ll make the appropriate decision. There may be a function for that; we’ll have to see how it plays out,’ Johnson said on ‘Fox News Sunday’ when asked about whether he would support recess appointments…
“Trump can recess-appoint nominees if Congress adjourns both chambers for 10 days or longer. The Constitution, however, dictates that neither chamber of Congress can adjourn for more than three days without the consent of the other, giving the House — and therefore, its Speaker — a say in whether it would be possible for Trump to recess-appoint his Cabinet…
“Sen. John Thune (R-S.D.) won the race to take over the top spot in the Senate GOP conference and said last week that closing down the upper chamber for 10 days or longer in order to allow Trump to make recess appointments is ‘an option,’ but warned that there might not be enough Republican support to adjourn and enable such a plan.” The Hill
The left is critical of recess appointments, arguing that they would violate the separation of powers.
“Presidents of both parties have used — and abused — [recess appointments], especially as the number of Senate-confirmed positions has grown, partisanship has intensified and the confirmation process has too often ground to a standstill. In a 2014 case, National Labor Relations Board v. Noel Canning, the Supreme Court slapped down President Barack Obama’s use of the recess power to make appointments even at a time when the Senate was holding pro forma sessions — with few if any votes — every three days to prevent such action…
“Notably, the court’s conservatives… decried the recess power as an ‘anachronism’ that undermines the separation of powers. ‘The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process,’ wrote Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr… But that was then — and this is Trump.”
Ruth Marcus, Washington Post
“The incoming Senate majority leader, John Thune of South Dakota, has said that ‘all options are on the table, including recess appointments,’ for overcoming Democratic opposition to Trump’s nominees. But Democrats aren’t Trump’s primary concern; they won’t have the votes to stop nominees on their own. What makes Trump’s interest in recess appointments unusual is that he is gearing up to use them in a fight against his own party…
“If Senate Republicans block his nominees, Trump could partner with the GOP-controlled House and invoke a never-before-used provision of the Constitution to force Congress to adjourn ‘until such time as he shall think proper.’ The move would surely prompt a legal challenge, which the Supreme Court might have to decide, setting up a confrontation that would reveal how much power both Republican lawmakers and the Court’s conservative majority will allow Trump to seize.”
Russell Berman, The Atlantic
“This may sound technical, but it would amount to a massive power grab: Trump would be forcing the Senate into a recess. This would mean that, for many of the most important posts in the federal government, Trump could simply ignore the Senate, thumbing his nose at the body to impose everyone he wanted, no matter how corrupt, extreme, or controversial they are…
“It remains unclear whether [Trump would] go through with it. But it makes a lot of sense. It may reflect the influence of Elon Musk and the Silicon Valley right in Trump’s camp — it’s a risky, norm-shattering attempt to disrupt the way politics, governance, and presidential power work. (Musk has indeed been tweeting about recess appointments.) It would mean starting off Trump’s term with a high-stakes showdown and certain litigation — with no one certain about exactly how things would play out.”
Andrew Prokop, Vox
The right is divided.
The right is divided.
“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…
“[Trump’s] 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…
“Congress will have a one-year lifespan to carry out the Trump agenda before a new election season starts… 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.”
Brian Darling, The Hill
Others argue, “The Framers were concerned that the presidency they were creating could become tyrannical. The road to tyranny — meaning, to the eradication of Americans’ liberty — would always be the accumulation of too much power in any one government actor’s hands. Hence, they divided power, structuring the government so that the branches checked each other’s authority…
“In that vein, they empowered the Senate to ensure that high executive officials had the qualifications and character fitting for public trust — the government offices in which they would wield enormous power. The president can fire any executive official at any time — subordinates are delegated to exercise the president’s power only at the president’s pleasure. But the president cannot hire anyone he wants.”
Andrew C. McCarthy, National Review
“Using ‘recess appointments’ to hire agency heads who can’t win Senate confirmation is a guaranteed loser: The three conservative justices who voted to strike that down in the Obama years are still on the court, now joined by three Trump appointees who’ll side with them…
“And it’d build huge ill-will among senators whom Trump will need to pass much of his agenda, and more broadly among moderate and traditional conservative Americans… Americans voted for change when they elected Trump, but most of them also voted for a return to normalcy. If he disappoints them on that front… well, the midterms are just two years off.”
Editorial Board, New York Post
