Dem
47
GOP
53
Donald Trump has announced some nominations that are way beyond weird. Matt Gaetz, Pete Hegseth, Tulsi Gabbard, and Robert Kennedy Jr. come to mind. What is he up to? Maybe Trump opened the King Donald version of the Bible printed in China and found this story. There was this guy Abraham and he had a nice son, Isaac. God told Abraham to kill the kid. Abraham didn't like the idea so much, but when God gives you a direct order, you have to do it, or else. So Abraham found himself a knife and was about to do it when God shouted: "Stop! I just wanted to see if you put obedience to me above love, sanity and everything else. Here's a sheep you can use instead. I love roast mutton very much."
Could it be that Donald threw out names that he knew would be unacceptable to even loyal Trumpers in the Senate to try to intimidate them and discover who would put loyalty to him above everything else and vote for confirmation? Kind of like God testing Abraham? Was the whole exercise a gigantic power play to make it clear to everyone that he alone was running the show and that everyone else had better kowtow, no matter how horrible the marching orders are, or else?
Of course, such a play carries some risk. The Senate could call his bluff and reject his candidates. Then he would look like a loser and the Senate would gain the upper hand. But everyone in the commercial real estate business always takes risks. You build a big office/condo building and hope you can rent enough/sell enough to make it pay off. It might or might not work. You don't know in advance.
Continuing with this theme, Trump has threatened the Senate with bypassing them and appointing his Cabinet and other officials using a recess appointment. When the Constitution was written, Congress was not in session most of the year, and if an emergency occurred, it could take days or even weeks (especially in the winter, with impassable roads) to get all the members together. If an important official died and had to be replaced quickly, the founders decided to give the president emergency power to make appointments during a recess. This was never meant to be a workaround to get appointments approved without Senate consent, but was more a break-glass-in-case-of-an-emergency provision.
In 2012, when the Senate was off for 3 days, Barack Obama said it was a recess and he made some appointments. Republicans sued and the Supreme Court ruled that 3 days was too short to be considered a "recess." It was more like a long weekend. The ruling said that a break had to be at least 10 days for it to be considered a recess and thus activate the president's power to make recess appointments. Since then, the Senate almost never recesses when the opposite party controls the White House. Instead, every day or two, one member of the Senate is authorized to go to the empty chamber and gavel the empty Senate into session. Then the acting chair asks the empty chamber: "Does any member have any business for the Senate?" The chair then waits 5 seconds for the empty chamber to answer. Absent an answer, the chair declares the sitting to be over, to be continued tomorrow or the day after, so the Senate never recesses for very long, just in case.
Now, with nominations coming fast and furious, the Senate is not going to have a recession (sounds weird, but whatever), especially not after the new Senate is sworn in on Jan. 3. So how could Trump threaten to make recess appointments? One of his lawyers has no doubt told him about Art. II Sec. 3 of the Constitution, which describes one of the president's powers:
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
This seems to give the president the power to adjourn Congress if two conditions are met: (1) it is an extraordinary occasion and (2) the chambers disagree. If the president can force an adjournment whenever he wants to, then the Senate's confirmation power becomes essentially null and void. That certainly wasn't the intention of James Madison & friends. Also, who gets to determine what an "extraordinary occasion" is? If it is the president, then again, the Senate can easily be rendered toothless. Needless to say, if Trump tries to invoke this clause, some senators will appeal to the Supreme Court and make the case that there is nothing extraordinary going on and Trump is merely trying to subvert the Constitution. They will also argue they should be allowed to end their "recess" at any time (i.e., less than 10 days). Will the Supreme Court allow the king—sorry, the president—to subvert the clear intent of the Constitution to require Senate confirmations for appointees except in emergencies? Beats us. We might find out early next year. (V)