Trump’s recess appointment power is constitutional and vital to his agenda
President-elect Trump’s victory is an end to business as usual in Washington.
His desire to use recess appointment authority is a clear expression of how serious he is about making the federal government responsive to the will of the American people. Our Founders never envisioned a situation where Congress would schedule make-believe “pro-forma” sessions of Congress for the sole purpose of blocking a president from appointing officials and implementing his agenda.
A recess appointment is not a complex idea. It is a constitutionally recognized power of a president to appoint officials in the executive branch when there are vacancies, and the Congress is in recess. In the Federalist No. 67, Alexander Hamilton refers to the recess appointment power as nothing more than a supplement ... for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” The Senate is tasked with approving nominations, yet it is very slow to transact them.
When President Trump is sworn into office on Jan. 20, he face a huge obstruction to his agenda. Tradition holds that the Senate will convene to approve a handful of high-profile Cabinet officials, yet there will be thousands of other political appointed positions that will be vacant, thanks to the changing of party control of the White House. This massive number of empty jobs in the executive branch will make it virtually impossible for the Trump administration to conduct any business for months while waiting for the Senate to confirm hundreds of nominations. The party out of power will do all it can to sabotage Trump’s agenda.
Democrats in the Senate will obstruct by two methods. First, they will demand hearings on all nominations in addition to objecting to the waiver of rules expediting the consideration of nominations. Although the filibuster of nominations can be shut down with a simple majority, the time to transact nominations still is time consuming and is a de facto filibuster. The second tactic will be to demand so-called pro forma sessions of the House and Senate where nothing is done and for that they need Republicans to go along.
The absurdity of the idea of a pro forma session was recently exposed by Reps. Andy Harris (R-Md.) and Bob Good (R-Va.), leaders of the House Freedom Caucus. They took to the House floor during a pro forma session on Election Day and tabled a bill subject to a discharge petition, obviating the House's obligation to vote on it.
The leadership of the House cried that their act of killing a bad piece of legislation violated protocol, yet these Freedom Caucus members had violated no rules. They had merely exposed the fact that pro forma sessions are a farce.
With the 2026 midterms on the horizon, and 20 Senate Republicans on the ballot, there is no time to waste. Congress will have a one-year lifespan to carry out the Trump agenda before a new election season starts. If Democrats slow-walk nominations and cause the Senate to spend significant amounts of time confirming nominees, time will be wasted on passing a solid reconciliation bill, cutting wasteful appropriations and passing reform-minded legislation. President-elect Trump will have a great 2025, if the Senate is not bogged down by Democrat obstructionism.
The Constitution is specific when it comes to the power of the president with regard to nominations. Article II, Section 2 of the Constitution provides the president the power to appoint conditioned on seeking the “Advice and Consent of the Senate.” Article II, Section 3 of the Constitution provides the president the power to “fill up all Vacancies that may happen during the Recess of the Senate.” With Republican control of both chambers of Congress, there is no reason why Republicans could not actually go into recess when they are out of session without having fake pro forma sessions because they are scared that Democrats will resist.
One of my former Senate colleagues used to say “Break out the cots” when there was the hint of a filibuster and the possibility of senators fighting. It would take one night of Republicans rolling cots into the U.S. Senate to scare Democrats into letting the Senate go into recess. Remember, this is a U.S. Senate that is basically in session Tuesdays to Thursday for a full day’s work with frequent “State Work Periods” and the infamous “August recess” that lasts a month.
Our Founders never envisioned the creation of an administrative state that distracts Congress from its legislative duties with the confirmation of 1,200 appointees. Strategically using the constitutionally provided power of a recess appointment would guarantee that Trump preserves his political capital for the most meaningful debates ahead, Congress focuses itself on its primary duty of legislating and the American people experience a restoration of this great nation.
Brian Darling is former counsel for Sen. Rand Paul (R-Ky.).