NO Recess Appointments
NO Recess Appointments
The transition and confirmation process for the new President is off to a raucous start. A few thoughts on the first batch of nominations and the new Senate GOP Leader.
The national election’s controversies and intensity haven’t ended yet (Some places are still counting or recounting, some corruptly), and the new President-elect wasted no time making life difficult challenging for the Senate’s new Majority Leader, US Sen. John Thune (R-SD).
I congratulate my friend. Little did I know 34 years ago, while sitting across from Thune at his office in Pierre, South Dakota, to instigate a plan to help re-elect then-US Sen. Larry Pressler, that I was looking at a future Floor Leader of the US Senate.
Thune was then the 28-year-old executive director of Mount Rushmore State’s Republican Party. I was the 34-year-old deputy political director for the US Senate’s official campaign arm, the National Republican Senatorial Committee, responsible for a few endangered GOP incumbents. Once thought safe, Pressler, late in the campaign, suddenly found himself in trouble against Democratic challenger Ted Muenster. I outlined to the telegenic 6’4” Thune how we could use a pot of money, called “coordinated expenditures,” to help reelect Pressler, whose campaign was a mess. It’s a little complicated, and I won’t explain it here, but Thune immediately grasped it, and we got to work.
It included a statewide mail piece that I crafted and personally delivered in a U-Haul truck to a mail facility in Sioux Falls, a three-hour drive. To make a long story short, Pressler won by 19,000 votes. That would be his last term in the Senate, losing six years later to Tim Johnson in 2006. Conversely, Thune won the state’s lone congressional seat that year with 58 percent of the vote, defeating the state’s better-known lieutenant governor in the GOP primary.
Thune narrowly lost to Johnson in 2002 by 524 votes due to a high Native American turnout, particularly on the Pine Ridge Reservation. But the resilient Thune returned two years later and unseated Senate Democratic Floor Leader Tom Daschle. Thune has been handily reelected, often without opposition, ever since and is now dean of the state’s congressional delegation.
Thune worked up the leadership ladder, starting as the Chief Deputy Whip during his first term, and his leadership skills were noticed immediately. He chaired the Senate Republican Policy Committee and the Republican Conference before he was elected the Assistant Republican Leader (whip) six years ago. He was elected the GOP Floor Leader on the second ballot, defeating former Whip John Cornyn on a 29-24 vote after the third-place finisher, Sen. Rick Scott (R-FL), dropped off the ballot.
The personable, mild-mannered, and unflappable former high school star athlete from Murdo, South Dakota, will be subjected to a trial by fire with Donald Trump. Thune’s first challenge after officially assuming office on January 3rd will be organizing the chamber (committee assignments and chairs and a couple of vacant Senate officer positions) for the 119th Congress and preparing for the Trump inauguration 17 days later. The House and Senate will also gather to certify the winners of the Electoral College, which will have met in mid-December.
For those who think Thune is some RINO (Republican in name only), get a grip. The deeply devout Christian and family man Thune’s record is solidly conservative.
Hopefully, no controversies or shenanigans will occur. We’ll see who the election deniers are this time. Security at the Capitol will be tight, but hopefully, we can dispense with the concertina wire and thousands of mostly unarmed National Guard troops used for the show by then-Speaker Nancy Pelosi after January 6, 2021. Hearings on the presumptive Trump Cabinet nominees are likely to begin during this time.
Then, the fun begins at noon on Monday, January 20th - the Martin Luther King Holiday.
The President-elect is busy naming those he intends to nominate to various positions, and many will not be controversial. Secretary of State nominee and US Sen. Marco Rubio (R-FL) will be quickly confirmed. Former US Rep. Doug Collins (R-GA) should be an easy confirmation for Veterans Affairs. Most other announced appointments, such as those of the White House Chief of Staff, do not require Senate confirmation. As Majority Leader, Thune can hold any nominations at the desk for immediate consideration, at least the noncontroversial ones with strong bipartisan support.
It used to be that a new President was given considerable leeway on most of their Cabinet nominees. Historically, many, if not most, are confirmed almost immediately with little debate. Most new Presidents weren’t interested in expending a lot of political capital to get confirmations. Those were the days.
About “Recess Appointments”
But before we get into the three most controversial nominations, let’s knock some nonsense out of the way - the crazy talk of Trump making use of a never-used provision of the Constitution to adjourn Congress for at least 10 days, then appoint his Cabinet via “recess appointment.”
Here’s what the Article II, Sec. 3 (clause 1) says:
Someone advising the President-elect has concocted a hair-brained scheme that goes something like this: After Trump is sworn in, the House passes a resolution that adjourns Congress for at least 10 days. The Senate refuses to concur (and Leader Thune announced the votes wouldn’t be there to concur). Then, the President, citing “disagreement between them,” adjourns Congress for as long as he deems necessary.
Then, the President installs his Cabinet via recess appointment for the remainder of the 119th Congress while the confirmation process continues (I suspect the Senate would shut down confirmations immediately). He didn’t endorse anyone in the Senate leadership election contest but demanded the power to make recess appointments.
Not happening.
Let’s be honest. First, I do not believe that Speaker Mike Johnson is crazy enough to support, much less introduce, an adjournment resolution for 10 or more days less than a month into a new 119th Congress with so much to do (appropriations bills, etc.) (although some of his colleagues on his fringe might). Second, there won’t be enough votes to pass it if he/they did. I’m guessing at least 40 House Republicans would vote no on such a resolution, combined with every Democrat.
Any Member of Congress supporting such a brazen self-immolation of their duties and responsibilities should lose their next elections, if not resign in violation of their oath of office to uphold the Constitution.
Third, I doubt the Supreme Court would let this scheme stand if Trump and his congressional allies pulled it off. You cannot misuse one Constitutional provision—which the late Justice Antonin Scalia called an “anachronism”—to abuse another, in this case, Article II, Section 2 of the Constitution, which provides the Senate the power to “advise and consent” to specific nominations.
Sure, the Constitution gives the president the power to fill vacancies during a recess lasting at least ten days. Still, the founders wrote recess appointments into the Constitution in the 18th Century, when travel to and from the nation’s capitol took weeks via horse and buggy over dirt trails. The very first Congress in early March 1789 couldn’t get a quorum for several days as Senators and House members made their way to Philadelphia’s Congress Hall. Congress wasn’t a full-time legislature back then, but it is now.
I recall President George W. Bush making one of the last successful “recess appointments” in 2006: he named John Bolton UN Ambassador after his nomination stalled in the Senate. He was never confirmed. Democrats were livid and worked to ensure that didn’t happen again.
Republicans were livid when Barack Obama abused the power to fill vacancies on the National Labor Relations Board in 2012, claiming they were “recess appointments.” Obama stupidly asserted that the Senate was in “recess” when it conducted “pro forma” sessions every three days. However, the Supreme Court unanimously struck down those recess appointments in the Noel Canning vs. NLRB decision. The Supreme Court rejected many of Obama’s fascist executive overreaches. Obama’s record in Supreme Court challenges to his excesses was 0-12.
They’ll reject Trump’s excesses, too, especially if he tries this.
Look, I know many of my Trump-supporter readers are all about achieving his agenda. I get it, and I’m on board with much of it. We have woke malevolence or incompetence coursing through the veins of every Article II agency, including the dangerous politicization of the Department of Justice. Reforms and house cleanings are urgently needed. But the Constitution and its checks and balances must be respected.
I’ve been through the confirmation process as a nominee to the Federal Election Commission. It sucks. But for all its flaws, it works and is necessary. We need to trust the US Senate to do its collective job.
The best way to get the best people confirmed quickly is to nominate the best people loyal to him, his agenda, and, more importantly, the Constitution of the United States.
On that measure, Trump is batting less than 1.000.
A lot of ink is being spilled on Trump’s nominations, especially his more controversial ones. The nominations of Sen. Marco Rubio (R-FL) as Secretary of State, Gov. Doug Burghum (R-ND) as Secretary of the Interior, and former US Rep. Doug Collins (R-GA) for Secretary of Veterans Affairs should be confirmed on Day One. So should CIA Director-designate and former US Rep. John Ratcliffe (R-TX), whom I know and respect.
The nominations of Pete Hegseth as Secretary of Defense, former US Rep. Tulsi Gabbard (D-HI) as Director of National Intelligence, and especially former US Rep. Matt Gaetz as Attorney General are different matters.
Let’s get this out of the way. Gaetz will never be confirmed. Ben Domenech, author of The Transom, an editor of The Spectator US, and a Fox News podcaster explains why in this post on X. I’ll predict Gaetz’s nomination will be withdrawn before New Year’s Day, if not sooner. Why go through the embarrassment?
But maybe you should take US Sen. and Trump supporter Markwayne Mullin (R-OK at his word, even as Mullin now says he’ll “keep an open mind” about Gaetz’s nomination. Really?
After all this, the privileged Gaetz may wrap himself in martyrdom and seek another elective office in Florida—governor or a special election to replace Rubio as a US Senator. Floridians would be wise to eschew him, to put it mildly. I hope Donald Trump has his replacement nominee ready to go. He’ll need one. Domenech concludes his Substack rant about Gaetz this way:
Here’s the real deal: Matt Gaetz is the line for how we assess the Republican Party. If they are truly a cult of personality, beholden to Donald Trump in ways that we could not even imagine for a party that rejects cults and idol worship, they will approve this choice. But if they have a degree of independence, any kind of free thought, mindful of the fact that a presidency is four years but your career is forever, they will reject this choice so emphatically that it sends a very simple, straightforward message: you can be an absolute dirtbag wannabe pimp pounding dick pills and caffeine while you film your “girlfriend” twerking on the gram, or you can be a Republican. The choice is yours.
If you’re a fan of Matt Gaetz and think he’s fit to be Attorney General of the United States, you need a reality check. When Alexander Hamilton wrote Federalist 76, he talked about how Article II Sec. 2 gave the Senate power to keep people “unfit” from positions of power and responsibility. Now is the time to exercise it. Donald Trump failed on this one.
As for Gabbard, she is often lauded by Republicans for the way she torched then-Sen. Kamala Harris during one of the first debates for the 2020 Democratic nomination. What they forget is her apparent affection for Syrian dictator/murderer Bashar el Assad (in fairness, other conservatives feel differently) and blaming America first for Russia’s invasion of Ukraine. I respect and admire her as an Army National Guard Lt. Col. with 20 years of service and deployments. But don’t be swayed by the sultry voice or her “aloha” ways.
I realize that Gabbard has apparently had a change of heart and is now a Republican for, what, four weeks now? As a former Democrat who supported presidential candidates Fred Harris and Jimmy Carter in 1976, I’ve done the same, although I’ve got a 44-year head start. However, Senators must investigate whether her policy views have evolved and to what extent they may have influenced her ability to coordinate and “connect the dots” among US intelligence agencies.
It’s my view that the position shouldn’t exist or be reformed to encapsulate more power and responsibility. The 2001 post-911 layering of yet another position at the White House to oversee and “coordinate” intelligence agencies hasn’t worked well. The only intelligence agency that would report to her is the Central Intelligence Agency (CIA). Most of the others report to the Secretary of Defense or others.
The bottom line is that I’ll trust the US Senate, especially the incoming chair of the Senate Intelligence Committee, US Sen. Tom Cotton (R-AR), to navigate this one. But if I were a Senator, I’d ask tough questions in our first meeting and hold my powder for the hearings and the results of the full-field FBI investigation, which every nominee goes through (as I did. Twice).
Pete Hegseth is an interesting choice for Defense Secretary. He breaks the mold, but at least he has combat experience and two Bronze Stars. The latest stupidity is the claim he’s a “white supremacist” because he had a tattoo of the Jerusalem Cross on his chest. It is genuinely ignorant and stupid to make that claim, which is anti-Christian religious bigotry.
Hegseth is an author, an advocate for veterans, and an imperfect person. He’s been accused and cleared of sexual harassment and married three times. So has Donald Trump. Others suggest he lacks the experience to manage such a large government agency. You’d prefer the incompetent Gen. Lloyd Austin, who currently holds the position, or past Secretaries like the late former Rep. Les Aspin (D-WI, Clinton Administration), who had no previous military experience and whose decisions led to the deaths of American service people in Somalia (“Blackhawk Down”)?
The military has many significant problems, from a sclerotic and wasteful procurement system to an infection of wokeness among its leadership and ranks. Worse, our military has a recruitment crisis. Hegseth is, at least, uniquely positioned to address our recruitment crisis and promises to eradicate wokeness from the military.
I’ll keep an open mind on Hegseth and trust the Senate to do its job.
One last thing. Bad things are happening in Pennsylvania. Local Democratic election commissioners in Bucks County, Pennsylvania, are openly defying a State Supreme Court ruling on the validity of unsigned and undated mail ballots in violation of state law (not to be counted) to help rescue desperate US Sen. Bob Casey's flailing and embarrassing effort to hang on to his seat.
I didn’t realize that I could violate laws anytime I wanted. I don’t think I’ll try that here in Purcellville, Virginia, 20132.
This is your reminder that the US Senate, under the Constitution, is the final arbiter of its elections. I can’t imagine 52 GOP Senators allowing Casey to be corruptly certified by the illegal counting not just of ballots ordered NOT to be counted by the State’s Democratic Supreme Court but of unregistered voters. That’s the gambit.
Trust me on this: No GOP US Senator will defend or support Bob Casey in this situation based on these facts. Casey is beclowning himself and needs to stop before he totally destroys what little credibility and character he has left.
With this and the nominations coming their way, it’s time to trust the institution in charge of dispensing them: The United States Senate.
Interesting back stories