Tuesday, November 12, 2024

Donald Trump Doesn’t Need Recess Appointments

National Review Online

Tuesday, November 12, 2024

 

President-elect Donald Trump has demanded that the incoming Republican Senate promise to neuter itself so that he can staff up his impending administration without following the well-established constitutional rules. “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate,” Trump wrote on TruthSocial, “must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner.” Online, this idea swiftly became a rallying cry for the most fervent among Trump’s fans.

 

One can comprehend the president-elect’s desire to hit the ground running — especially given that, in our era of sprawling government, there are indeed too many positions that require confirmation. Nevertheless, his request is wholly inappropriate within the American system of government and ought to be rejected with prejudice. Article I of the Constitution requires that the Senate must approve “all other Officers of the United States, whose Appointments are not herein otherwise provided for.” It provides no exceptions to that rule — and nor should it. The core purpose of our unique system of separated powers is to reduce the authority that any one person or faction enjoys within the federal apparatus. Were a prospective Senate majority leader to vow to help Trump get around this arrangement, he would not only be undermining that principle, but doing so by abdicating his own oath of office and weakening the institution that he had been selected to protect. The men who ratified the Constitution understood that liberty was best secured when ambition counteracted ambition. Any senator who proved willing to abandon that ambition in the name of temporary partisan advantage would not be much of a senator at all.

 

As ever, the arguments being advanced in favor of executive supremacy tend ineluctably toward the demagogic. On Twitter, Elon Musk summed up the tone in which the usurpation has been demanded by insisting that the “new Senate Majority leader must respond to the will of the people.” But this is a Wilsonian, not a Madisonian, approach to the Constitution. It is, of course, true that the “will of the people” was that Donald Trump should serve as president once again. But it was also the “will of the people” that each of the 100 senators and 435 representatives be sent to make up a legislature that, by explicit constitutional design, operates as a wholly separate locus of power. As president, Trump controls the executive branch. He has no power over the legislature. Republicans understood this in 2012, when they successfully sued to prevent Barack Obama from making illegal recess appointments to the National Labor Relations Board. They understood it in 2016, when they successfully blocked Obama from appointing Merrick Garland to the Supreme Court. They understood it in 2021, when they blocked President Biden from nominating Neera Tanden, David Chipman, and others to the executive branch. Nothing has changed since then, other than that the shoe — for now — is on the other foot.

 

Once confirmed, executive-branch appointees are the president’s tools. They can be fired by him at will, and have no basis to resist his demands unless the demands are flatly illegal — in which case, appointees are obliged to resign rather than resist. Trump is correct to be concerned that he be able to staff the executive branch with people who understand the near-absolute power that presidents have to get their way with their own subordinates. What he misses is that the very sweep of that power is the reason that the Framers of our Constitution imposed checks on the president at the hiring stage.

 

Besides, the instrumental case for Trump’s proposed circumvention is extraordinarily weak.

 

The Republicans have 53 seats in the Senate. There is no filibuster for executive-branch appointees. And, thanks to Mitch McConnell, since 2019, the maximum post-cloture debate time for each nomination has been reduced from 30 hours down to two. As a result, one would expect all but the most egregious of Trump’s nominees to be swiftly confirmed. (Joe Biden, for example, got his first three cabinet picks confirmed within a week; the last was confirmed on March 22, and that was after Biden’s initial choice had withdrawn.) As Harry Reid demonstrated repeatedly, it is a bad idea to make sweeping changes to the American system in pursuit of temporary aims. But it is even sillier to do so on a false assumption of impotence. A disciplined transition team should be able to get almost everything that it wants and thereby ensure that the positions in question are staffed not as temporary, unpaid recess appointments that could be reversed if the GOP were to lose the Senate in 2026 but as permanent appointees whose tenure would last for as long as Trump wished. Why, then, this Jacobin panic? To achieve the end Trump seeks, Republicans would either need to overcome Democratic opposition by abolishing the filibuster, or to recruit the usual 50 votes to take the Senate out of a pro forma session. Theoretically, either is possible. But, given that both ploys would require a majority of the Senate to indulge, wouldn’t it be a lot easier to confirm in the usual way?

 

Given the vagaries of human nature, temptations such as these are probably inevitable. At one point or another, everyone in the United States has believed that their preferences were more important than the integrity of the system, and, at one point or another, everyone has been wrong. The story of the last century is the story of Congress slowly handing its prerogatives over to the White House, only for the architects of the transfer to regret it once they had inevitably been kicked out of power. The aim of the country’s constitutionalists ought to be to reverse that trend, not to accelerate it, for, as history has often taught us, a return to the status quo ante can be far more elusive than it seems.

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