If the Senate does not want to approve Trump's appointees, he can get them appointed anyway

Many people are asking about recess appts (remember John Bolton's?). Jeff Childers and The Center for Renewing America dig deeper than anyone else on the law around this issue

☕️ ACE CARD ☙ Tuesday, November 19, 2024 ☙ C&C NEWS 🦠

… It’s not any stretch to say the GOP’s Senate RINOs are concerned about some of Trump’s nominations, or maybe even most of them. The first principle is that the Constitution requires Presidential nominations to be confirmed through a yes/no vote by a majority of Senators. As noted, at the outset of Trump’s first term, the Senate tied Trump’s appointees up in knots and put them through the wringer in ugly, extended, contentious hearings. (Note for interest that Senate hearings to ‘interview’ nominees are a relatively recent innovation and are not constitutionally founded.)

There exists a long and storied history of Presidents skirting the Appointments Clause, sometimes for good and necessary reasons, occasionally for ill. As a result, a respectable amount of Supreme Court law has developed, so despite what the Atlantic says, the available alternatives can hardly be called “untested.”

The Constitution, mindful of the need for steady leadership, provides a second way for Presidents to hire Cabinet nominees: the Recess Appointments Clause. When the Senate is in recess, the President can appoint a Cabinet member until the following Senate term. No Senate consent is required. During previous battles over presidential recess appointment powers, the Supreme Court has ruled that recess appointments are not lessor or inferior in any way to Senate-confirmed appointments.

The Constitution does not discriminate between the two types of Appointments.

Knowing all about the Presidential Recess Appointment Power, the Senate hardly goes into recess, at least not in the modern era. The Senate is institutionally more powerful whenever it can hold appointment powers over a president’s head. Wielding the appointment power, the Senate can haggle for things it wants from the Oval Office, like presidential signatures on bills, for one obvious example. Recessing thus throws away its leverage.

So if Trump will face problems in the new Senate —which is hardly certain— it is difficult to imagine the Senate would voluntarily recess to allow Trump to quickly appoint his nominees. It’s not impossible, though. Incoming Senate majority leader, John Thune (R-S.D.), did say that “all options are on the table, including recess appointments.” The real question is, what horrible promises might the Senate wring from Trump, in exchange for agreeing to recess?

This is where things get especially interesting. There’s an offbeat, never-used constitutional provision that, combined with Recess Appointment powers, when the presidential stars are aligned in just the right way, provides a President with a powerful tool: the right to force the Senate into recess. Even though never used, the Supreme Court has considered exactly this scenario, and not very long ago, either.

In 2014, the Supreme Court decided NLRB v. Noel Canning. Amidst an extended discussion of Appointment Powers, the majority opined that “the Constitution gives the President (if he has enough allies in Congress) a way to force a recess.”

The Constitution’s Article II, § 3, provides that “The President may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.”

In modern language, the President can force both the House and Senate to adjourn whenever one of them passes a resolution to recess and the other doesn’t. A presidentially forced recess can last as long as the President wants. So, for instance, if the House of Representatives tells the Senate it wants Congress to recess, and the Senate “disagrees,” then the President may declare a recess to settle the disagreement.

For as long as he wants.

Circling back to the beginning, all this places Trump ally and House Speaker Mike Johnson in the spotlight. Trump may not even need to use his disagreement powers. The existence of a threat of an extended recess completely changes the dynamics. President Trump now holds effective negotiating leverage to strike a rational deal with the Senate, without having to dicker away the MAGA farm.

That is terrific, reassuring news. There is no need to panic when turtle-like, vaccine-injured relic and Senator Mitch McConnell says stuff about Trump’s nominees. Trump holds the cards he needs to make a deal. But there’s an even better way of looking at it.

This appointment strategy is wickedly smart. It took everyone by surprise. It evidences a stratospheric level of planning and master-level chess-playing by the Trump Team. Trump is getting some of the best legal advice I have ever seen. No wonder he is being so bold in his nominations, as if he’s not giving a single thought to the political considerations of nominating people that a majority of the Senate will go along with.

In a Fox News interview on Sunday, Speaker Johnson refused to rule out helping Trump evade the Senate. “There may be a function for that,” he said suggestively. “We’ll have to see how it plays out.”…