This past week, the Wall Street Journal featured an article on recess appointments. In the piece, the Journal asked: “Is there a precedent for Trump’s proposal?” The answer it gave to its own question was meant to cast Trump’s plan as a lawless and dangerous abuse of the Constitution:
“According to the Senate’s official historian, Katherine Scott, Trump’s demand for unilateral power over appointments is unprecedented. Never before, she said, has the Senate deliberately abdicated its power to confirm nominations by recessing at the president’s request. The House also has a role to play here, because its concurrence is required for a recess exceeding three days.”
The truth is, this is simply the normal push and pull of political power. Democrats openly teach the necessity of exercising raw political power when they have the upper hand. Political consultant and strategist James Carville has been preaching this for a long time: “The way you really change things…all comes out of political power.” When Republicans exercise political power, they are excoriated for trampling “norms” and abusing the Constitution. The standard is very different when the shoe is on the other foot. Democrats always exercise their political power and then some.
Article II of the Constitution specifically permits recess appointments:
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
When the Constitution was adopted, the Senate was often in session only for three to six months out of the year, so this provision guarded against a handicapped administration during those long recesses.
In our modern era, congressional sessions last two years, which has made the Recess Appointments Clause the source of dispute.
Recess appointments have been made throughout the history of our republic. Even the United States Supreme Court has had multiple justices first raised to the High Court as recess appointments. President George Washington appointed Thomas Johnson to the Supreme Court in 1791. In the modern era, the list includes Oliver Wendell Holmes (1902), Earl Warren (1953), William Brennan (1956), and Potter Stewart (1958).
The Recess Appointments Clause has been a source of political jockeying for almost two decades now—and the prime movers in this drama have been Democrats, who understand and wield political power much better than Republicans. In 2007 and 2008, then-Majority Leader Harry Reid used pro forma sessions to block President George W. Bush from making judicial recess appointments before the end of his term. At the time, the Washington consensus and political practice was that a president could not make an appointment during a recess that was fewer than three days. Therefore, during a longer recess, Reid would convene brief pro forma sessions (i.e., a “session” during which no work was actually undertaken) every three days to ensure that the Senate did not have a recess long enough to permit Bush recess appointments. It was a blatant political power play. In 2010, Republicans retook the House. Because neither chamber can recess for more than three days without the consent of the other, the Republican-controlled House determined to deny then-President Barack Obama the longer recesses during which he could make appointments. But Obama, who famously boasted, “I have a phone, and I have a pen,” simply announced recess appointments during the three-day recess period, appointing several new members to the National Labor Relations Board (the “NLRB”), among other appointments. He defied the consensus, broke the norm, and boldly stepped into “unprecedented” constitutional territory. Again, the Democrats are the party that pushes the boundaries (and, indeed, often blows through them); the Democrats understand the raw use of political power and they never shy away from wielding it.
Obama made his move. After the NLRB ruled against a Pepsi distributor in a labor dispute, the distributor brought suit alleging the board members were invalidly appointed by the President. NLRB v. Noel Canning is now a case every law student studies. This case was the first time in 200 years of American history that the Supreme Court interpreted the Recess Appointments Clause. The Court held, among other things, that a three-day recess is not sufficient for a recess appointment (and, indeed, any appointment made during a recess less than 10 days is presumptively invalid). So Obama tested a theory, and the Court checked him.
Donald Trump’s idea to convince the Senate to recess for the purpose of permitting him recess appointments is less controversial than Barack Obama’s actions in 2012. Obama broke an agreed “norm.” Trump is simply planning to use the full complement of power he holds (thanks to the clean red sweep on November 5th) to jumpstart his agenda—exactly what the Democrats do whenever they control the levers of power. This is the game of politics James Carville preaches to his party. Trump won the election, and—for the next two years—his party controls both chambers. Recessing the Senate for political motives is the bread and butter of politics.
The Democrats lost their political power in Donald Trump’s sweeping landslide victory, and Trump should do everything possible to maximize the will of the people by fast-tracking the ambitious changes he promised and for which the nation voted. Far from some unprecedented or Constitution-straining strategy, President Trump’s proposal is an ordinary political chess move within the confines of the Constitution.
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