President-elect Trump has demanded that Senate Republicans allow him to staff his administration with recess appointments. This would be a sharp departure from how judicial and important executive positions are filled. The eagerness of leading Republican senators to agree to Trump’s demand is deeply disturbing.
How are appointments supposed to be filled?
Under the Constitution, the president nominates important executive officers, as well as federal judges. But those nominees cannot take office without Senate confirmation.
This constitutional requirement provides a vital check on presidential power. Among other things, it prevents the president from unilaterally filling powerful positions with utterly unqualified nominees.
Conflict between the parties means that the confirmation process can be messy, long, and even unfair. Both Democratic and Republican administrations have found the process frustrating. In that sense, it is like many other constitutional safeguards of our freedom: Increased efficiency is not worth the abuse of power that it would entail.
What are recess appointments?
When the Constitution was written in the 1780s, it could take weeks for members of Congress to travel to the nation’s capital. If an important vacancy opened up when Congress was in recess, it could hobble the government to leave the position unfilled for the time it would take to gather the Senate.
So the framers included something called recess appointments. When Congress is not in session, the president can temporarily fill a position without Senate confirmation. That person can stay in office until the end of the next session of Congress. This gives the Senate a chance to consider the nomination and decide whether the person should be confirmed for the full length of their term.
Although we no longer live in the 1700s, this archaic provision of the Constitution still exists. In recent decades, some presidents have used it during a congressional recess to appoint officials whose nominations have been stalled in the Senate. But it has never been used at the start of a presidential term as Trump is threatening.
How might MAGA Republicans try to use this to empower Trump?
Potentially, a Republican-controlled Congress could declare themselves in recess in early January until the end of the month. Or the House and Senate could claim they could not agree on adjournment dates, which would trigger a never-used constitutional provision empowering the president to adjourn Congress himself.
Under either scenario, a newly installed President Trump in his first minutes in office might name people to fill every existing judicial vacancy, every cabinet post (including the attorney general), and hundreds of sub-cabinet posts (including U.S. attorneys, the lead prosecutors in every district of the nation).
Under this scheme, an entire infrastructure of oppression would be imposed on our nation in an instant, without our consent.
There would be no vetting by senators or by the American people they are supposed to represent. The scheme would keep us from finding out vitally important things we should know.
Normally, nominees have to fill out Senate questionnaires, which are made public. They are subject to background investigations, which are made available to Senators on relevant committees. The relevant Senate committees would hold hearings. The committee would vote and then the full Senate would vote. But recess appointments would bypass all of that. There would be no way for the American people to learn about the checkered pasts, conflicts of interests, and dangerous positions of the people that Trump would be putting into positions of power.
Would the Supreme Court allow this?
The six MAGA justices in the majority have already earned the mistrust of the American people. We cannot simply assume they would strike down such a transparent abuse of power.
There was a case in 2014 called Noel Canning where the Court struck down recess appointments made by President Obama to the National Labor Relations Board. Although the justices all agreed on the result, they were divided 5-4 on the reasoning. The majority held that a recess that's less than ten days is generally too short to trigger the president's recess appointment power.
Five of the current justices were on the Court for Noel Canning: Sotomayor and Kagan (who joined the majority opinion), and Roberts, Thomas, and Alito (who joined a concurring opinion).
Cowering before a bully
How can we explain Republicans who in the past praised the separation of powers in our constitutional structure, but who today did not immediately and loudly reject Trump’s demand for recess appointments? Are they so afraid of Trump and his MAGA supporters that they can’t bring themselves to protect the integrity of the Constitution and the U.S. Senate?