November 5 was a watershed day in more ways than one. It marked the election of Donald Trump by a solid majority of the American public, who were on balance more pleased with his campaign’s platform and promises than they were with those of Kamala Harris. A large number of key issues ranging from energy and the environment to securities regulation, foreign policy, military readiness, and antitrust law were among the areas where voters saw clear differences and responded accordingly.
Now, however, the election is over, and for Trump supporters and detractors alike, it is an entirely different game. No longer is it necessary to compare two bundles, choosing the better one as a whole, even if you disagreed with some of its content. Now it is possible, and indeed, necessary, to examine each stick in the winning bundle on its own merits. There is no duty to accept all of Trump’s proposals. Indeed, it is imperative to speak out on matters where the victorious candidate has gone astray, setting aside those features you might find attractive.
Unfortunately, the president-elect has already made a mess of some key issues, so the unbundling must now proceed in earnest. One measure of the disaffection is the movement in the stock market, where a huge upward bump after the election has already disappeared because of Trump’s early unforced errors, which have drawn scorn on both sides of the aisle.
The salient issues are all closely related to his key cabinet appointments. The first is whether Trump should defy tradition by making recess appointments, i.e., without the consent of the Senate, at the outset of his term. As a political matter, this brash tactic is a nonstarter. The requirement of Senate consent for presidential appointments is widely understood as an important check on the power of the president. As Hamilton wrote in Federalist No. 76, the Senate “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” Recess appointments are only discussed in Federalist No. 67, but only to affirm that this power cannot be used to fill vacancies in the Senate. At no point does the clause take center stage, but it does serve as an important backstop lest comity break down so that the president’s opponents can stall the appointments of meritorious nominees.
Today, however, there is no blockade. The Senate is in the hands of the Republicans and the new Senate majority leader, John Thune, is in a position to expedite major nominations, given that he has at least fifty-three Republican votes. It doesn’t matter if the Democrats were to resist qualified nominees. The real reason the recess option is now on the table is that many key members of the Republican base could defect and oppose certain very controversial nominees. Thus, when Thune announces that all options are “on the table,” including recess appointments, he does so only because four Trump nominees are widely acknowledged to be in political trouble.
This list is headed by Florida Representative Matt Gaetz, who has been the most improbable, and wretchedly unqualified, nominee for attorney general.
Trump has also nominated former representative Tulsi Gabbard to be national intelligence director. The serious objection to her is that she has no experience in either intelligence or in running a complex set of interlocking agencies.
He also has tapped Robert F. Kennedy Jr. to be secretary of health and human services. Kennedy has, of course, been attacked for his views on the origins of autism and use of mRNA vaccines in a variety of circumstances. But, as one who shares his negative views on lockdowns and mRNA vaccines, I do not consider whether these views are right or wrong to be the dominant question. His extreme views on other issues relating to food and drink will also draw scrutiny, especially from industry sources. Even more important is whether he has the chops to run a complex agency that has its fingers in every pot when he has no administrative experience at all or direct engagement with many of HHS’s multiple programs.
Finally, there is defense nominee Pete Hegseth, who not only is embroiled in a controversy over his settlement of a sexual-assault allegation but also is attacked for the key reason that applies to all Trump nominees: he is not up to the job, given the lack of administrative and subject-matter expertise, for which political loyalty to the president is no substitute.
The objections are powerful. These nominees are going to have to hit the ground running and will have no time for tutorials to learn the basics of their departments. Nor is there any way deputies can fill the looming void. Professional staff have difficulties coordinating activities even when they work with an excellent chief, and their jobs—even assuming the right people are selected by a head who does not know his or her field—are not easy. It also risks disaster to have the actual line of authority from the chief to the deputy not align with the official lines of authority. Such a breakdown would make it hard for anyone to get answers and easy for foes to gum up the works until matters cascade into a full crisis. All these issues must be aired in the Senate before any final judgment, although in the case of Gaetz, emphatic rejection is a foregone necessity.
The requirement of a Senate hearing therefore is not just an institutional nicety. It is in the view of those such as Ed Whalen, as well of countless critics on the left, an absolute necessity. Not only is this scheme a political disaster, but it is also a constitutional blunder of the highest order.
Start with the text of Article II, Section 2, Clause 3, which reads:
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.
The most recent Supreme Court decision on this matter was Noel Canning v. NLRB (2014), which, unfortunately went all over the map, so it is best to start over. The first question: what is the role of these recess appointments? The clause is located right after Article II, Section 2, Clause 2, which gives the president the power to make major appointments only with the advice and consent of the Senate. Recess appointments function only as a backstop to that primary mode of appointment. The clause speaks only of one (“the”) recess between sessions, which does not refer to the breaks that take place during or after the first year of each the two sessions of Congress. Justice Breyer was just wrong in Noel Canning when he treated “the” and “a” as occasional synonyms instead of linguistic opposites. The clause applies only, as is now the case, once the current session of the Congress comes to an end. The section refers to those vacancies that “may happen” during that recess period. That restriction links a recess appointment to the activities that took place during the previous term, therefore serving as a guard against an end run around the basic rule.
Thus, one situation where recess appointments make sense occurs if, during the previous session, the Senate were to take it upon itself to slow down the review process such that it refused to pass on a presidential nomination that is ready for review—the nomination just dies. At this point, the recess power works well as a counterweight to this form of abuse by allowing the president to get his nominee through so that it can last to the end of the next session, or a two-year period. There, the protection for the opposing senators is to vote down the nomination, which then stops the process without allowing a new nominee to fill a recess appointment. The entire process has to start over from scratch in the next session. Alternatively, if someone dies during the recess, the place may be filled because that event is beyond the control of the president.
Given the text, it would be absurd to say that at the moment Congress convenes on January 3, 2025, it can adjourn itself to make some intrasession appointments, thereby circumventing the process. Neither Thune nor the speaker of the House, Mike Johnson, should ever invite a gratuitous constitutional crisis, as again detailed by Ed Whalen, by flouting every known constitutional safeguard. And if they take it upon themselves to engage in such a bizarre practice, then any party adversely impacted by the ersatz holders of these departments should resist these appointments as void and illegal, which means the courts should order them removed from office. Let’s hope that Trump stops playing with fire before he wrecks his administration before he is even inaugurated.
