Trump’s Recess-Appointment Scheme
Wall Street Journal
Editorial Board
Nov. 14, 2024 5:42 pm ET
Republicans regained the U.S. Senate last week with a decent majority, 53 seats, so it was strange the other day when President-elect Trump issued a pre-emptive demand that his own party let him make recess appointments, “without which we will not be able to get people confirmed in a timely manner.” It’s easier to make sense of this brainstorm now that Mr. Trump says his nominee for Attorney General is the regrettable Rep. Matt Gaetz.
The Constitution restrains the President’s appointments by giving the Senate the power to confirm, or not, his nominees. Hamilton in Federalist No. 76 writes that this provides “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.” If Mr. Gaetz is nominated, Republican Senators would think hard about voting no. Hence, Mr. Trump’s interest in bypassing them.
Because the Founders had to travel to and from the national capital by horse, they also granted the President the power “to fill up all Vacancies that may happen during the Recess of the Senate.” Such appointments are temporary but can last about two years. The point was to prevent the President from being left short-handed. “Until the beginning of the 20th century,” according to the Congressional Research Service, “the Senate was, on average, in session less than half the year.”
Mr. Trump seems to be asking Republicans to help him exploit this exception by making it into the rule for presidential nominees. “We need positions filled IMMEDIATELY!” he posted on Truth Social. The prospect is that Mr. Trump might try to bully the Senate to go into a recess, so he can unilaterally make Mr. Gaetz the Attorney General, maybe until the end of 2026. He could fill other vacancies across the federal government in the same way, with no need for confirmation hearings or votes.
The idea is anti-constitutional, and it would eliminate one of the basic checks on power that the Founders built into the American system of government. If Mr. Trump gets away with it, the next Democrat to win the Oval Office would whoop through left-wing nominees. Whoever holds the Presidency would gain unilateral power to name cranks and cronies to offices of immense authority. Or maybe Mr. Trump’s attempt to eviscerate the Senate’s constitutional role would go to the Supreme Court.
In an age of jumbo jets and cellphones, the original purpose of recess appointments is “an anachronism,” as the judicial giant Justice Antonin Scalia once put it. Recent Presidents have used them to circumnavigate Senate obstruction, with some justification. In 2005, when President George W. Bush sent John Bolton to the United Nations on a recess appointment, Mr. Bush noted that the Senate had “held thorough confirmation hearings,” and Mr. Bolton had won majority support. Yet a Democratic filibuster blocked an up-or-down vote.
Mr. Trump will face no such obstacles next year. Republicans are firmly in control of the Senate, and presidential nominees are no longer subject to the 60-vote filibuster rule, thanks to the late Democratic Leader Harry Reid. Many of Mr. Trump’s cabinet picks so far are competent, mainstream figures, and they’ll have no trouble getting through quickly. Although hundreds of positions require confirmation, lower appointees don’t need the same level of vetting as an Attorney General.
Lately the Senate’s custom has been to gavel in pro forma sessions every few days during its breaks, even if most people are out of town, to deny the President any opening for recess appointments. The Supreme Court upheld this in NLRB v. Noel Canning (2014). Mr. Trump next year might have other ideas. “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate,” he insisted, “must agree to Recess Appointments.”
He means South Dakota Sen. John Thune, who won the votes of his GOP colleagues this week to be the next Majority Leader. Recess appointments are Mr. Thune’s first test. He has said they aren’t off the table, and he wants to approve Mr. Trump’s nominees fast.
But his comments Wednesday suggest he also sees the gravity of what Mr. Trump proposes. “I’m willing to grind through it and do it the old-fashioned way,” Mr. Thune said. Good for him, and we hope other Republicans back him up.
Editorial Board
Nov. 14, 2024 5:42 pm ET
Republicans regained the U.S. Senate last week with a decent majority, 53 seats, so it was strange the other day when President-elect Trump issued a pre-emptive demand that his own party let him make recess appointments, “without which we will not be able to get people confirmed in a timely manner.” It’s easier to make sense of this brainstorm now that Mr. Trump says his nominee for Attorney General is the regrettable Rep. Matt Gaetz.
The Constitution restrains the President’s appointments by giving the Senate the power to confirm, or not, his nominees. Hamilton in Federalist No. 76 writes that this provides “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.” If Mr. Gaetz is nominated, Republican Senators would think hard about voting no. Hence, Mr. Trump’s interest in bypassing them.
Because the Founders had to travel to and from the national capital by horse, they also granted the President the power “to fill up all Vacancies that may happen during the Recess of the Senate.” Such appointments are temporary but can last about two years. The point was to prevent the President from being left short-handed. “Until the beginning of the 20th century,” according to the Congressional Research Service, “the Senate was, on average, in session less than half the year.”
Mr. Trump seems to be asking Republicans to help him exploit this exception by making it into the rule for presidential nominees. “We need positions filled IMMEDIATELY!” he posted on Truth Social. The prospect is that Mr. Trump might try to bully the Senate to go into a recess, so he can unilaterally make Mr. Gaetz the Attorney General, maybe until the end of 2026. He could fill other vacancies across the federal government in the same way, with no need for confirmation hearings or votes.
The idea is anti-constitutional, and it would eliminate one of the basic checks on power that the Founders built into the American system of government. If Mr. Trump gets away with it, the next Democrat to win the Oval Office would whoop through left-wing nominees. Whoever holds the Presidency would gain unilateral power to name cranks and cronies to offices of immense authority. Or maybe Mr. Trump’s attempt to eviscerate the Senate’s constitutional role would go to the Supreme Court.
In an age of jumbo jets and cellphones, the original purpose of recess appointments is “an anachronism,” as the judicial giant Justice Antonin Scalia once put it. Recent Presidents have used them to circumnavigate Senate obstruction, with some justification. In 2005, when President George W. Bush sent John Bolton to the United Nations on a recess appointment, Mr. Bush noted that the Senate had “held thorough confirmation hearings,” and Mr. Bolton had won majority support. Yet a Democratic filibuster blocked an up-or-down vote.
Mr. Trump will face no such obstacles next year. Republicans are firmly in control of the Senate, and presidential nominees are no longer subject to the 60-vote filibuster rule, thanks to the late Democratic Leader Harry Reid. Many of Mr. Trump’s cabinet picks so far are competent, mainstream figures, and they’ll have no trouble getting through quickly. Although hundreds of positions require confirmation, lower appointees don’t need the same level of vetting as an Attorney General.
Lately the Senate’s custom has been to gavel in pro forma sessions every few days during its breaks, even if most people are out of town, to deny the President any opening for recess appointments. The Supreme Court upheld this in NLRB v. Noel Canning (2014). Mr. Trump next year might have other ideas. “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate,” he insisted, “must agree to Recess Appointments.”
He means South Dakota Sen. John Thune, who won the votes of his GOP colleagues this week to be the next Majority Leader. Recess appointments are Mr. Thune’s first test. He has said they aren’t off the table, and he wants to approve Mr. Trump’s nominees fast.
But his comments Wednesday suggest he also sees the gravity of what Mr. Trump proposes. “I’m willing to grind through it and do it the old-fashioned way,” Mr. Thune said. Good for him, and we hope other Republicans back him up.
