Suddenly, the Beltway buzz has centered on recess appointments. Donald Trump demanded that Senate Republicans in the next session of Congress allow for them in a Truth Social post yesterday, and today this well-worn tactic to get around a hostile Senate has become a new controversy ... especially since Trump will have a GOP-friendly Senate when he takes office.
So what gives? Time is of the essence, Trump argued on his social-media platform:
Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner. Sometimes the votes can take two years, or more. This is what they did four years ago, and we cannot let it happen again. We need positions filled IMMEDIATELY! Additionally, no Judges should be approved during this period of time because the Democrats are looking to ram through their Judges as the Republicans fight over Leadership. THIS IS NOT ACCEPTABLE. THANK YOU!
Time is of the essence, but that wasn't exactly the approach Trump used eight years ago. His Cabinet picks came quickly enough, and Senate Democrats kept delaying their processing out of spite -- but that was in a different political environment too. Trump just won a decisive victory and mandate, plus at least 53 Senate seats, and thanks to Harry Reid, all Trump needs are simple majorities for confirmations. Cabinet confirmations should take place relatively quickly this time, as long as Trump prepares by having the nominations ready to go at the start of the next session on January 3. If Democrats try gumming up the works again, then the recess appointment option may be a fall-back, but that has its limitations too.
We'll get to that in a moment, but the real problem in 2017 was with Trump's appointments below the Cabinet level, and that was because Trump didn't produce them in a timely manner. It took months in some cases for the Senate to get nominations, which had the unfortunate effect of leaving careerists in the bureaucracy in charge to set policy in their departments. We wrote about this gap in 2017 and into 2018, arguing that the apparent strategy of delaying or ignoring these appointments as a way to drain the swamp was enabling it instead, and more so than ever.
Again, though, the political situation in 2025 will be far different than in 2017. Trump will get a chance to have a real transition focused on getting a running start on the new administration rather than a lawfare campaign that tried to push him out of office over 'Russia collusion.' Trump can assemble these lower-tier appointments ahead of time, perhaps with the experience he lacked in 2017 about their import, and then pressure the Senate to act quickly. But again, with 53 Senate votes and a clear mandate from the electorate, Trump should have no problem using the normal confirmation process to achieve success.
The three men running for Senate Majority Leader agree on the need to act quickly, but only Rick Scott explicitly endorsed the idea of recess appointments:
100% agree. I will do whatever it takes to get your nominations through as quickly as possible. https://t.co/GlrHx2zJXh
— Rick Scott (@SenRickScott) November 10, 2024
It is unacceptable for Senate Ds to blockade President @realDonaldTrump ‘s cabinet appointments. If they do, we will stay in session, including weekends, until they relent. Additionally, the Constitution expressly confers the power on the President to make recess appointments.…
— Senator John Cornyn (@JohnCornyn) November 10, 2024
We must act quickly and decisively to get the president’s nominees in place as soon as possible, & all options are on the table to make that happen, including recess appointments. We cannot let Schumer and Senate Dems block the will of the American people.https://t.co/h6gDmjhbqn
— Senator John Thune (@SenJohnThune) November 10, 2024
All of this ignores the fact that recess appointments are a pain in the rear -- although perhaps not quite as much as the confirmation process is today. This demand has some on the Left and in the media fretting that Trump wants to use recess appointments to get radicals into key government positions, so extreme that they can't pass a GOP-controlled confirmation process. But it doesn't really solve that problem, at least not for long, because recess appointments eventually still have to get a confirmation vote from the Senate, because recess appointments only remain valid until the next recess.
In other words, assuming that the Senate goes into a significant enough recess to allow for such appointments, they'd expire by the summer break at the latest. The Senate would still have to confirm them when returning in early September. And let's not forget all of the cheering we did when the Supreme Court ruled unanimously in 2014 in NLRB v Canning that any recess had to last 10 or more days to allow for presidential recess appointments. It would be very awkward for the Senate to go into a 10-day recess in February just as the Trump administration would want them gearing up for budget and legislative agenda items, especially with the House so narrowly divided that it will be difficult for House Republicans to take point on the agenda.
That's a long way to take to travel next door.
But perhaps Trump's just shaping the political battleground to force Dems to back off. Power Line's Steven Hayward argues that Trump is just reminding Senate Democrats that they'll be wasting their time in attempting to thwart him:
First, the confirmation process has become a kludge, and way for the opposition party to obstruct and delay an administration from running the executive branch. This ought to be regarded as a constitutional problem by itself.
The problem has gotten steadily worse over the last 50 years, and there ought to be the first clue. What happened 50 years ago? Watergate, and the subsequent “ethics” regime that immediately lengthened the background checks and reviews for appointees.
This leads to the second point: No amount of reformist tut-tutting is going to change this problem very much. So Trump is doing what he does best: go on offense with an aggressive move certain to upset the established order of things. If the Senate gives in to his demand, then Trump gets to speed up his appointments. But if not, maybe he’ll prod the Senate to speed up the process. Either way he makes progress and gets some of what he wants.
That certainly makes more sense than the idea of recess appointments in a 53-47 Senate. Think of it as chin music in baseball. The purpose isn't to hit the batter, but to back him off the plate.
Batter up.
