Adler: Trump’s demand for recess appointments brings the Constitution and the Senate’s role into sharp focus
The recess appointment power, seldom at the forefront of national discussion, resurfaced recently as a headline topic when President-elect Donald Trump declared that those Republicans seeking the title of Senate majority leader “must” agree that his nominations for his cabinet should be installed as recess appointments, a move that would bypass approval by the U.S. Senate.
The unprecedented command from a president-in-waiting to an independent, co-equal branch of government raised the spectre of the Senate surrendering a fundamental power that the Framers of the Constitution believed marked an essential distinction between a monarchy and a republic, to do the bidding of Trump, while ditching its supervisory constitutional role to grant advice and consent on cabinet nominations.
Essentially, Trump has asked the GOP-controlled Senate to adjourn as soon as it convenes in January to enable him to fill cabinet posts without the constitutionally prescribed process of “advice and consent,” which involves scrutiny of the nominees’ credentials and qualifications, including rigorous confirmation hearings that reflect penetrating questions and testimony from friendly and opposition witnesses.
Article 2, Section 2 of the Constitution creates a joint appointment power, shared equally between the president and the Senate. The Framers of the Constitution rejected the English model, which placed in the monarchy the unilateral power both to create offices and make appointments to fill them. The Framers were familiar with the king’s incautious and corrupt exercise of the twin powers and took measures to divide the appointment authority.
Accordingly, the creation of an office, including a cabinet post, requires statutory enactment. The authority to fill the posts is a two-step process. The president nominates and the Senate exercises its advice and consent power, the authority, as the Supreme Court has said, to grant or withhold its approval.
The Framers’ decision to create a shared appointment power reflected their commitment to collective decision-making, what they regarded as the cardinal principle of republicanism — the belief that the collective wisdom of the many is superior to the judgment of a single person. Delegates to the Constitutional Convention applied the same reasoning to the treaty-making power, acknowledging their deep-seated fear of unilateral executive power and confidence in collective decision-making, an approach that promotes the merits of discussion and debate and the doctrine of checks and balances. No delegate believed in the infallibility of a president.
The Framers knew the Senate would not always be in session and that vacancies in office might “happen,” which could not await the Senate’s return, thus necessitating a recess appointment. The Constitution provides that the president may fill those vacancies by granting commissions which will expire at the end of the next session of Congress.
President-elect Trump’s directive, if followed, would mean his nominees would serve for two years, at which point the Senate would have to assess their qualifications as part of their advice and consent role unless, of course, the Senate was asked again to acquiesce to another round of recess appointments.
In the nation’s early history, congressional sessions lasted only a few months, and presidents often made recess appointments during the long periods when Congress was in recess or adjournment. Historically, controversy has erupted when the two branches, not in sync on nominations, have played a cat and mouse game to control the vacancy.
A president, for example, facing the possibility that the Senate might reject his nominee, could wait for the Senate to take a recess and then fill the vacant office to circumvent the Senate. And the Senate, realizing that a president would resort to such tactics, might avoid taking recess altogether by holding pro forma sessions that might last just three days, thus frustrating a presidential recess appointment. This ploy involves calling the Senate into session and adjourning a minute later.
Aside from those ploys, in which both Republicans and Democrats have engaged, what distinguishes President Trump’s plan is that no president-elect has ever asked the Senate, upon assuming office, to lay down its constitutional power to advise and consent and stand aside while the cabinet is installed without any vetting of the nominees’ credentials. The Constitution was not written for the government, but rather for the people. A Senate that stands aside is transforming the jointly held appointment power into a unilateral presidential power, precisely what the Framers of the Constitution feared and rejected.
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.