A fundamental feature of the checks and balances in our constitutional system is the submission by the president of his major office nominations for review and approval by the Senate. In exceptional circumstances — when the Senate is in recess and not available to review a nominee whose service is necessary — the Constitution empowers the president to make a recess appointment. That appointment is not permanent, but it lasts for a
long time.
Recess appointments are legal. Bill Clinton made 139 recess appointments. George W. Bush made 171. And Barack Obama made 32. But it has been 10 years since any president has made a recess appointment.
As gridlock and polarization increased in Congress — and fears mounted that a president might use the process to circumvent the Senate approval process — the Senate began limiting its recesses so that no such appointments could be made.
But even when recess appointments were made, they were done as a move of last resort, with the implicit understanding that recess appointments were an exception rather than the rule.
President-elect Donald Trump is threatening to turn the whole process on its head, so that he can bypass Senate review of some of his nominees and use the recess appointment power to appoint several of his more controversial cabinet nominees who will likely struggle to get Senate confirmation.
That’s a bad idea.
Even if congressional leadership can be convinced (or coerced) to order a lengthy enough recess to allow for such recess appointments, the institutionalized circumvention of the Senate’s constitutional role of advice and consent would be a terrible mistake.
Indeed, the orchestrated cancelation of one of the Senate’s core constitutional responsibilities would be a troubling sign of upheaval that would support many of the worst fears about Trump’s inclinations, attitudes and respect for the institutions of government that were raised repeatedly during his recent presidential campaign.
Almost immediately after his election victory Trump sought to make an agreement to allow recess appointments a condition for the selection of a new Republican majority leader in the Senate. The demand took many by surprise and turned the attention of constitutional scholars to issues relating to both the legality and propriety of such an effort by a president. Sen. John Thune, R-S.D., who won the majority leader election, said that the Trump approach is “on the table,” depending on whether Democrats “want to play ball.”
Thune is wrong. The issue doesn’t depend at all on whether Senate Democrats “want to play ball.” Indeed, Senate Democrats will have very little say in whether or how the recess appointment issue will be addressed and resolved.
Instead, the issue is whether Republican senators — who will have a solid majority in the next Congress — will have the courage and the backbone to protect the constitutional responsibility delegated to them and defend the separate branch of government in which they serve, or buckle to the leader of their party.
This should not be a difficult choice. We hope we won’t be disappointed.
