Q&A of the Day – Can Trump Fill His Cabinet w/Recess Appointments?
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Today’s Entry: @brianmuddradio Can’t Trump just fill his cabinet through recess appointments?
Bottom Line: President-elect Trump is the ultimate Washington change agent. But as he learned during his first term as president, Washington’s entrenched swamp creatures are highly resistant to change. As he came to learn it is not only imperative to have the right people in the right places that are supportive of the change agenda, but it’s also important to act quickly to do so. Much is made of a president’s first 100 days in office, yet it took the former and future president, nearly 100 days the first time around to have his cabinet confirmed. Before diving into the logistics of recess appointments, let’s start with how long it’s taken the five most recent presidents to have their cabinets confirmed upon becoming president:
- Bill Clinton: 50 days
- George W. Bush: 12 days
- Barack Obama: 98 days
- Donald Trump: 97 days
- Joe Biden: 61 days
What this illustrates is that the size of the victory, and thus the perceived size of the mandate, has had no bearing on how quickly a president’s cabinet picks have been confirmed. George W. Bush had by far the most efficient confirmation period of these five presidents and yet he had the narrowest victory. It’s safe to say that Trump has no interest or appetite to have the first 100 days of his second administration almost entirely consumed with simply trying to get his cabinet selections through the senate. On that note, President-elect Trump has been very vocal about the prospect of recess appointments.
As posted by Trump on X: 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. 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! Additionally, no Judges should be approved during this period of time because the Democrats are looking to ram through their Judges as the Republicans fight over Leadership. THIS IS NOT ACCEPTABLE. THANK YOU!
So, about recess appointments... Under the United States Constitution, the Senate has an “advice” and “consent” role in the confirmation of many cabinet positions. Basically, it’s a vetting process and one of the checks on the executive branch that the legislative branch is afforded. However, under the constitution it is also recognized that there may be times in which Congress isn’t in session and the president may need to fill posts within an administration. The recess appointment clause is addressed under Article II, Section 2 of the Constitution: 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. Here’s the difference between senate confirmed picks and recess appointments:
- Senate confirmed cabinet members may serve in confirmed positions for the duration of an administration
- Recess appointments may serve for a period of up to two years without senate confirmation and are to be known as “acting” cabinet officials. A la, “Acting Attorney General”, etc.
Trivia time. Who was the first president to make recess appointments? If you guessed that it was our first president, George Washington during his first year in office, you’d be correct. In other words, while many in the media are suggesting Trump’s suggestion that his most controversial cabinet members should be allowed to be seated during a senate recess, there’s never been a president who has served at least one full term who hasn’t used recess appointments and the practice has been in use since the first year of our country’s history. Even Washington had a hard time getting what he felt he needed in cabinet confirmations from the senate. So, about the politics and the logistics of the current situation.
Republicans will have a 53-47 senate majority entering the next congress. This means Republicans can lose three votes, even if every Democrat is opposed to a cabinet member, and still have an official confirmed with JD Vance, as president of the senate, casting a tie breaking vote. That’s the first layer of the onion to peel back. Are there necessarily more than three Republican members who will vote “no” to a given cabinet pick? The next layer of the onion is similar but different as we consider the prospects of a recess appointment.
Senate recess is a formal process. It’s not as easy as say picking a Sunday that the senate isn’t convening and the president making a bunch of appointments on that day. The senate must actually vote to go into recess. So, here’s where that second onion layer comes into play. Let’s say, for example, that the entire Democrat caucus is opposed to a Trump selection, and more than three Republican senators are too. Are there at least 50 Republican senators who would be willing to vote to enter a recess to allow Trump the opportunity for the temporary appointments?
The political consideration is this. Perhaps there’s a moderate Republican senator who isn’t willing to vote “yes” for a particular presidential pick and to have to answer for that “yes” vote with their constituents. Would enough of those Republicans be willing to vote to go to recess knowing that the recess appointments would be made? It’s a way to temporarily give President Trump what he wants without having to specifically put one’s name on it.
Those are the calculations that will come into play as we approach the new congress and presidency in January.