President-Elect Donald J. Hitler has gotten approval from both the new senate majority leader and the speaker of the house to make recess appointments if necessary. Both houses of Congress need to be involved in the process. Naturally, the media have begun rolling out their requisite freakouts.
Leftists wonder if they can hire enough shock troops to bang on the Senate doors to stop Donald Trump from making recess appointments after being sworn in. Democrats shake their fists and rend their garments in worry that President-Elect Stalin's request will color outside the lines of propriety. Bureaucrats worry that President-Elect Pol Pot will commence his evil Mao-like takeover of the United States of the Soviet Union.
Whoa, Victoria. What's the deal with all the name-calling?
Trump's been called all of these things over and over, and the left attempts to parlay that shared narrative to stop him from doing what he has every right to do: appoint people during a Senate recess. One Atlantic article stands out because it contains a Super Yankee of name-calling that will go down in dis-history. I wrote about it in this article: UNHINGED: TDS Suffering 'Atlantic' Reporter Just Set Off a C-4 Charge on Godwin's Law.
People dumb enough to believe that recess appointments are simply uncouth and Hitler-worthy are probably unfamiliar with the history of recess appointments and likely don't care, but I'll tell you anyway.
Even though the estimable Wall Street Journal opinion writers proclaim recess appointments are "anti-constitutional," they are indeed constitutional. And this power isn't hidden in a penumbra or emanation, either. It's secreted in these things they call the Appointments Clause and the Recess Appointments Clause. They're in writing and everything.
Related: How Will Trump Get Rid of the 'Deep State'? Not the Way You Think.
Indeed, presidents have been making recess appointments since the beginning of the nation. The idea was that the president would need to make appointments while senators were back home working in their fields, at their law offices, or inventing things. It would take days for them to ride their horses back to D.C., and the president couldn't wait. But that's so 1800s. It's been many years since that has been a concern, but presidents have continued to freely make recess appointments.
You may remember when Obama went all FDR on the country and packed the National Labor Relations Board (NLRB) with his band of radical union hacks to open up a can of whoop-a** on corporate America. He appointed the three during a three-day pause of the Senate between Jan. 3-6, 2012.
The case was NLRB v. Canning, a 2014 Supreme Court case pitting a Pepsi-Cola distributor against Barack Obama's NLRB. Noel Canning, a victim of the Obama-packed NLRB, sued, claiming that the three NLRB members were unconstitutionally appointed. He won his case because Obama named them via recess appointment when the Senate wasn't properly recessed. Oops.
Justice Stephen Breyer wrote for the majority:
The President’s January 4 appointments were made between the January 3 and January 6 pro forma sessions. In the distributor’s view, each pro forma session terminated the immediately preceding recess. Accordingly, the appointments were made during a 3-day adjournment, which is not long enough to trigger the Recess Appointments Clause.
In short, "The Recess Appointments Clause of the U.S. Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length, but three days is not sufficient length."
Accordingly, "Thus, if the Senate is in recess for at least 10 days, the President may grant recess commissions to fill up all vacancies in Offices for any reason."
Considering they're on vacation for most of the year, I don't see this as a heavy lift. But the Senate has a little game it plays with presidents. It lowers to gavel every so often to pretend that the one guy at the desk has opened a pro forma meeting of Congress. This is to prevent recess appointment extravaganzas.
Still, Vox calls it a "stunning power grab." One of my usual faves, Ed Whelan, said Trump's plan to get recess appointments was "bonkers" because he thought Trump would trigger the recess of both houses of Congress. All Trump needs is for Mike Johnson to consent, which he has. So Trump wouldn't have to imperiously announce the adjournment of both bodies — even though he has the right to do that as both groups of Supreme Court justices affirmed in the majority and concurring opinions.
Obama's Solicitor General Don Verrelli argued that not allowing the appointments “would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington. And going forward, it would diminish presidential authority in a way that is flatly at odds with the constitutional structure the framers established.”
You won't hear the left scream about diminishing Donald Trump's presidential authority — quite the opposite.
Related: Reality Check for Politico, and Media 'Scandalized' by Possible Trump Recess Appointments
That SCOTUS setback didn't stop Obama from making recess appointments, however. According to a 2017 Congressional Research Service study about Obama's and other recent presidents' recess appointments have been numerous and often led to a full-time appointment after the recess and in regular order. Well, what do you know?
- President Obama made 32 recess appointments, all to full-time positions.
- During his presidency, President William J. Clinton made 139 recess appointments, 95 to full-time positions and 44 to part-time positions.
- President George W. Bush made 171 recess appointments, 99 to full-time positions and 72 to part-time positions.
- Six of President Obama’s recess appointments were made during recesses between Congresses or between sessions of Congress (intersession recess appointments).
- The remaining 26 were made during recesses within sessions of Congress (intra-session recess appointments).
- In each of the 32 instances in which President Obama made a recess appointment, the individual also wasnominated to the position to which he or she was appointed.
- In all of these cases, are lated nomination to the position preceded the recess appointment. In 20 of the 32 cases, the Senate later confirmed the nominee to the position to which he or she had been recess appointed.
- The nominations of the 12 remaining recess appointees were either returned to, or withdrawn by, the President.
So a president needs to know when the Senate is in recess — "during any recess — intra-session or inter-session — of sufficient length." It must be ten days long at least.
But the long knives are still out for Trump.
As the president-elect knows, when all of your enemies who —
1. Gleefully participated in the left's information op against that Russian Secret Agent Trump,
2. Gave breath to the phony J-6 Committee travesty, or
3. Colored outside the lines of propriety by rioting, looting, and setting fires outside the White House, forcing the president's family to shelter in the nuclear bunker
— are the same ones warning that you're doing it wrong, you're on the right track.
Let's hope President-elect Trump doesn't need to do recess appointments, but if the #Resist movement we saw in the Trump 45 administration rears its head in the Trump 47 administration, he'll need every tool in his arsenal to power through.
Godspeed.
