Reassessing Receess

“The President 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.” 

Article II, Section 2 of the Constitution

"We don’t need any Democrats to help us. We have got the numbers… But, he added, [Trump needs] a team around him that’s going to help him. He can’t do it by himself.” 

Sen. Tommy Tuberville, R-Ala, November 10th.

“You have to have people you trust to go into these agencies and have a real reform agenda. And that’s why I think there’s real momentum, real momentum to get these nominations confirmed to actually deliver what President Trump promised on the campaign trail.” 

Sen. Eric Schmitt, R-Mo, November 10th.

It’s bad enough that the richest man in America is acting as if he spoke for the President-elect. Trump himself is playing at the edges of constitutional limitations. Although I will drill into the historical details and intent below, let’s start with the reality that Article II, Section 2 was never supposed to usurp or replace the requirement that major presidential political appointees be subject to the advice and consent of the Senate. It was simply a stopgap measure to cover moments, when the Senate was not in session, when our country needed major federal leadership appointees until those approvals could be vetted and voted on. It was most certainly not a tool to install controversial appointees to serve long enough that their failures would be difficult to undo. The reason for this power had more to do with travel time… back then.

“It was during this first congressional recess that President George Washington made the country’s very first recess appointments. The U.S. Constitution provides that the Senate must approve presidential appointments. But at a time when cross-country travel by horse prevented senators from quickly convening, the framers of the Constitution decided to add a clause allowing the president to make temporary appointments during a congressional recess.

“Recess appointments became controversial as modern travel and longer congressional sessions have eliminated some of the reasons that the framers created the exception in the first place. These appointments drew increased scrutiny in the 21st century, with the Supreme Court ruling on them for the first time in 2014.” History.com

“During the nation’s early history, Congress would take months-long breaks from Washington, and presidents could use recess appointments to avoid having an important job go unfilled. But more recently, the process of recess appointments has been featured in partisan fights with the president.

“President Bill Clinton made 139 recess appointments and President George W. Bush made 171, though neither used the process for top-level Cabinet positions, according to the Congressional Research Service. President Barack Obama tried to continue the practice, using it 32 times, but a 2014 Supreme Court ruling put a check on the president’s power to make recess appointments.” Stephen Groves, Associated Press, November 14th. In NLRB v. Canning (2014), the US Supreme Court became skeptical of such appointments, which last until the end of the sitting term of the Senate (generally such a term could last as much 2 years – the time between elections), made under an overly short recess.

Today, if Trump’s nominees to key cabinet posts seem unlikely to be confirmed through the “advice and consent” vetting and Senate voting process, Trump is now pressuring Senate Republicans to recess long enough to get these objectionable candidates into cabinet leadership positions as recess appointments. This would render Art II, Section 2 virtually meaningless for recesses that follow a major change reflected in the November election. For the possible instant appointments, this would provide that maximum 2-year appointment without any Senate vetting.

Normally, this would seem a longshot, but with the US Supreme Court as currently configured, particularly in light of their sweeping presidential immunity decision, that conservative, pro-Trump 6-3 majority may well rule in Trump’s favor. What’s more, while “It would be a significant shift in power away from the Senate… Trump is returning to Washington with almost total support from his party, including the more traditional Republicans who still hold sway in the chamber.

“Their commitment, however, is being tested now that Trump has turned to picked people outside the Republican Party mainstream like former Reps. Matt Gaetz of Florida and Tulsi Gabbard of Hawaii for top positions… It quickly became apparent… that figures like Gaetz, who Trump announced as his choice for attorney general, may struggle to gain majority support from the Senate, even though Republicans will enjoy a 53-seat majority. But that may not matter if Trump is able to use recess appointments.” AP Who are the most controversial nominees to date?

Attorney General: Resigned on November 13, House Rep. Matt Gaetz of Florida to serve as his attorney general, opting for a loyalist who has built a national reputation as a disruptor and has vowed to dramatically overhaul the Justice Department. Previously under investigation for having sex with a minor, trafficking with underage females, possible drug use, both by the DOJ and House Ethics Committee. As he left the House, there is controversy about the release of the results of his House Ethics Committee Report, which is said to contain extremely negative information about him. Many believe he is Trump’s designated “retribution tsar,” ready to target Trump’s critics and opponents, allied with the designated FCC-chair, Brendan Carr, expected to rein anti-Trump media operating under federal licenses.

Secretary of Defense: Pete Hegseth, a former Fox News host, who was investigated in 2017 over "an alleged sexual assault" at a California hotel that was hosting a gathering of Republican women. Anti-DEI (especially women in combat roles), in favor of firing “woke” generals. Also combat veteran who was a captain in the Army National Guard, he served overseas in Afghanistan and Iraq, as well as at Guantánamo Bay, Cuba. He has no senior military experience.

Health and Human Services: Donald Trump has picked vaccine sceptic and former independent presidential candidate Robert F Kennedy Jr as his health secretary. Kennedy, commonly known by his initials RFK Jr, has a history of spreading health information that scientists say is false. Environmental lawyer and member of the Kennedy family (which has rejected his policies and his political aspirations), Kennedy is the chairman and founder of Children's Health Defense, an anti-vaccine advocacy group and proponent of COVID-19 vaccine misinformation.

Energy Secretary: Major Trump donor, Chris Wright, who calls himself “a tech nerd turned entrepreneur,” is a media-friendly evangelist for fossil fuels who promotes a feel-good message that oil and gas can lift people out of poverty, while disparaging climate science. The “fracking king.” He is expected to work with former GOP Congressman New York Rep. Lee Zeldin, the desingated EPA-chair, who is promising to lift environmental regulations that Trump feels are killing American jobs.

Director of National Intelligence: Tulsi Gabbard, a former Democratic congresswoman and an outspoken critic of the Biden administration's foreign policy, to become his director of national intelligence. Know to admire autocrats and has a strong proclivity toward isolationism. She has no relevant experience in this field.

I’m Peter Dekom, and it seems that Donald Trump didn’t even wait until day 1 to be dictator.