Trump demands Senate recess so he can install Star Wars cantina
And Republicans are all too eager.
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Just a week after his election victory, Donald Trump is already demanding that the Senate cede one of its core constitutional powers to him.
“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,” he blustered on Truth Social. “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!”
Trump’s howling makes it seem as if he’s the unique victim of Democratic skullduggery, blocked from carrying out his promises to the American people. The reality is quite different. In fact, Article 2, Section 2, Clause 2 of the Constitution imposes an affirmative duty on the Senate to vet some 1,200 high-ranking executive branch officials in the same way they would judicial nominees.
[H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law …
Trump was particularly slow in sending nominations to the Senate the first time around. According to the Washington Post, three months into his first term, he’d put forward just 37 names for 530 senior-level jobs requiring Senate confirmation.
But the process of staffing up every new administration has slowed to a crawl because Republicans spent the last 25 years weaponizing Senate procedure to obstruct Democrats. Democrats have certainly returned fire, but no one has done more to ratchet up the temperature — and the gridlock — than Republican Leader Mitch McConnell.
"The single most important thing we want to achieve is for President Obama to be a one-term president," he crowed back in 2010. And one of the ways McConnell ensured that Obama couldn’t enact his agenda, despite having a majority in the House for his first two years and in the Senate for six, was to filibuster literally everything, including Obama’s executive branch nominations.
In desperation, Obama turned to Article 2, Section 2, Clause 3, better known as the Recess Appointments Clause, to fill some vacancies. Under the provision, “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.”
In plain English, if the Senate is in recess, the president may fill judicial and executive branch vacancies without the advice and consent of the Senate, but those nominees must later be vetted in the normal course when the Senate reconvenes. The problem is that the Constitution is silent as to how long the Senate must be out of session to qualify as a “recess,” and so the body’s leaders have customarily gaveled in for pro forma sessions every few days so as to avoid giving the sitting president a window to bypass them.
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In December 2011, the Senate broke for the holiday, gaveling in and out every three days so as to avoid being “recessed.” President Obama took the position that these sessions were pretextual and recess appointed three members to the National Labor Relations Board, which had been unable to operate for more than a year since it lacked a quorum. The NLRB then ordered a Pepsi distributor called Noel Canning to live up to an agreement it had inked with the Teamsters Union and subsequently reneged on. The company sued, alleging that the NLRB order was void since its members were illegally appointed, and in a 9-0 ruling the Supreme Court agreed.
Despite the fact that President Johnson made recess appointments when the Senate was out of session for just eight days and President Truman did so during breaks of just three days, the Court held that 10 days is the minimum pause to allow a president to make recess appointments. But a concurrence penned by Justice Antonin Scalia and signed onto by Justices Thomas, Alito, and Chief Justice John Roberts went even further. They insisted that recess appointments could only take place between two formal sessions of Congress (i.e. every two years) and that the vacancy must itself have arisen during that recess (i.e. the president cannot simply wait for Congress to take a break to ram through nominees who could not otherwise be confirmed).
The four conservative justices, three of whom are still members of this Court, were wholly unconcerned that this would make it harder for the president to do his or her job, scoffing that “Convenience and efficiency … are not the primary objectives of our constitutional framework.” And in fact they decried recess appointments as “an anachronism” which should be discarded in the modern era: “The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process.”
Which brings us back to Trump, who is currently demanding that the Republican-led Senate surrender its power of advice and consent and shut down for 10 days — opening the border, as it were — to allow him to install the entire Star Wars Bar as high officials in his administration. Indeed, he’s threatening to torpedo any of the three aspirants to succeed McConnell as majority leader if they don’t preemptively knuckle under to his demands.
Trump is already demolishing a key check on his power
It’s not difficult to see why Trump would like to avoid putting his preferred appointees through the wringer of confirmation, even after McConnell did him a solid and changed the rules in 2019 to cut debate time for lower-level nominees from 30 hours down to just two.
The last time around, Trump’s appointees took quite a beating from congressional Democrats, most notably Attorney General Jeff Sessions, who stammered through an interrogation by his former colleague, then-Sen. Kamala Harris. And Sessions was, on paper at least, a rational choice for the office. This time Trump is threatening to make shitposter Kash Patel head of the FBI. Even assuming Patel could get confirmed, Democrats would surely take advantage of confirmation hearings to draw attention to his promise to weaponize law enforcement to attack the media and embark on a revenge tour against everyone who ever tried to bring Trump to justice.
(In related news, as this newsletter was being finalized Tuesday evening, news broke that Trump will nominate Fox & Friends Weekend host Pete Hegseth to be his secretary of defense. Hegseth has a checkered past and espouses a number of fringe views, so his nomination illustrates one of the reasons Trump is eager to bypass confirmation hearings.)
In short, Trump is demanding, as the price of his support, that the incoming Senate majority leader promise to let him skip checks and balances and stack his administration with every unconfirmable ghoul he can find.
Naturally he’s got a whole cadre of Republican spinmeisters willing to dress up this naked extortion and gross assault on the separation of powers as a measured response to Democratic obstruction. Former White House Counsel Don McGahn took to the Wall Street Journal’s opinion page on Monday to tut-tut that “recess appointments are a tradition worth restoring, and Mr. Trump deserves to have the power that all his predecessors had.” This ignores the reality that Biden’s confirmations also took forever, and no president has ever had the power to simply staff his entire administration without the bother of confirmation hearings.
But McConnell’s putative successors cannot surrender their power fast enough.
“100% agree. I will do whatever it takes to get your nominations through as quickly as possible,” Florid Senator Rick Scott panted on X.
Texas Sen. John Cornyn was only marginally less thirsty: “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.”
South Dakota Sen. John Thune, McConnell’s current deputy, made it unanimous: “One thing is clear: We must act quickly and decisively to get the president’s cabinet and other nominees in place as soon as possible to start delivering on the mandate we’ve been sent to execute, and all options are on the table to make that happen, including recess appointments.”
So now Trump is currently naming a cadre of offensively unqualified sycophants to staff every government agency, safe in the knowledge that his congressional allies will roll over and cede their constitutional authority to him and three Supreme Court justices will execute an about face and discover that recess appointments are very cool and very legal after all.
That’s it for today
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Mitch the Bitch has EVERYTHING to do with this mess…. Fucking coward
This is well written and to the point. But, really, what is the point? We can rail against what is happening, and yet we are absolutely not going to change anything. This nightmare will unfold and it will be horrible for many. I mean, what more is there to say? We can march, sign petitions, write salient blogs, but it will change absolutely nothing or temper in any substantial way what is going to happen to this country. I realize this is not a popular thing to say in this forum, but we're screwed. He has the House, Senate, and SCOTUS, a pliable MSM, and a constituency besotted by Fox and Musk misinformation. Don't stop writing, though. Honestly, it's better than nothing, but just realize it's not much better than nothing. But I don't want to sit back and lick wounds for 4 years either, but we will have to see in 6 months or so, how unpopular his autocratic behavior is, and how the vectors of dissent might again rise to become potent again. But for now we are powerless to stop it, and we are basically like Lear, raging on the heath at the storm that has overtaken us.