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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