Understanding Recess Appointments as President Trump Returns to White House

Americans are hearing a lot about recess appointments as incoming President Donald Trump announces nominations to top government positions for his new administration, so understanding when and how the Constitution empowers presidents to make those appointments is key to grasping how the president-elect plans to implement a bold agenda to move the United States in a new direction and overhaul a deeply dysfunctional government.

Normally, under the Constitution’s Appointments Clause, senior positions in the federal government are filled by officers who are nominated by the president and confirmed by the Senate. Congress creates federal offices by passing laws, and specifies for each officer whether or not they require Senate confirmation. These senior officials are called “principal officers” in constitutional law, and of the 4,100 or so political appointees in the executive branch, there are 1,200 such senior positions. Lower-ranking positions are “inferior officers” that do not require the Senate.

But the Framers who wrote the Constitution foresaw that the Senate would often not be in session. Their solution was that the Recess Appointments Clause in Article II, Section 2, Clause 3 of the Constitution empowers the president to fill high-ranking positions without Senate confirmation under certain circumstances.

These recess appointments last throughout whatever annual session Congress is currently in, plus the next session. So, for example, any recess appointments made at any point in 2025 would last until Congress finishes in 2026 session sometime in December 2026. In other words, a recess appointment can last for almost two years — which is half of a presidential term.

Recess appointments are in the news as President Trump weighs his options for staffing up his administration, including the possibility of recess appointments. This strategy is the predictable result of Democrat obstruction in recent years.

With few exceptions, there was a standard way that Senate confirmations worked all the way from the Constitution’s adoption in 1789 to 1986, when Justice Antonin Scalia was confirmed to the Supreme Court by a vote of 98-0. Everyone knew that Scalia was an archconservative, first as a law professor and later as a federal appellate judge. But Ronald Reagan had been elected as a conservative Republican, so every Senate Democrat acknowledged that Scalia was well qualified, and voted to confirm him to a lifetime seat on the Supreme Court. He served for just shy of 30 years.

But Democrats won control of the Senate in the 1986 midterms, then in 1987 voted down Robert Bork for the Supreme Court, despite Bork being every bit as well qualified as Scalia. Judicial confirmations have been broken ever since, plaguing the Bush 41 years, where Justice Clarence Thomas was narrowly confirmed 52-48, all the way to President Trump’s first term, where all three of his Supreme Court picks – Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – were confirmed by similar margins.

Republicans tried to right the ship during the Clinton years. Liberal lion Ruth Bader Ginsburg was confirmed to the Supreme Court 96-3 in 1993, despite a long record as the ACLU’s top lawyer and a law professor, then an arch-liberal appeals judge on the federal bench. And liberal Justice Stephen Breyer was confirmed 89-9 the following year.

Yet when Republicans retook the White House in 2000, things got worse. Senate Democrats expanded their judicial obstruction to include federal appeals courts, and — relevant here — Democrats tried to systematically block or delay key executive nominations. Unquestionably qualified Republican nominees were slow-walked or scuttled.

Expanding this obstruction to the executive branch poses new challenges because it hampers governmental functions. Presidents serve 4-year terms. The rule of thumb is that political appointees have a shelf-life of 18 months or 2 years. So until recently, conventional wisdom was that a president is entitled to his choice for senior positions unless they are manifestly unqualified, and the major political parties acted accordingly.

When a president wins the support of the American people to claim the presidency, he wins with it the right to have very broad latitude in picking the people who will assist him in delivering what he promised to the voters. That is part of his mandate.

Bush 43 nominees endured that treatment for 8 years, so Republicans returned the favor to some degree when Barack Obama took the White House in 2008. That’s where recess appointments come in.

The Constitution says in Article I, Section 5, Clause 4 that neither house of Congress can “adjourn for more than three days” without the consent of the other house. So Senate Republicans adopted a plan during the Obama years to give Democrats a taste of their own medicine, whereby every three days a Republican senator would take the presiding officer’s chair, gavel the Senate into session, go through a couple formalities, then adjourn for another three days. These “pro forma” sessions blocked recess appointments.

Predictably, Obama had other plans. He responded to Senate Republicans by having his Department of Justice Office of Legal Counsel (OLC) issue a legal memorandum in 2012 saying that the president can declare the Senate to be in recess whenever there are too few senators on hand to conduct the Senate’s business. (OLC is essentially the general counsel’s office for the entire Executive Branch, including providing advice to the president on behalf of the attorney general.)

OLC’s claim was immediately seen by many as going too far. By 8:00 p.m. on most days there are no senators on the floor to do business, so taking the OLC opinion to its logical conclusion, most nights a president could make recess appointments right before going to bed. That would be absurd.

Nonetheless, Obama used his newfound power to make some recess appointments, including to the National Labor Relations Board (NLRB), which at that time lacked a quorum to conduct any business at all because there were too many vacancies.

Noel Canning was a company who got the short end of the stick from the newly revived NLRB, and promptly sued, arguing that Obama’s recess appointments to the NLRB were unconstitutional.

The Supreme Court in NLRB v. Noel Canning agreed, holding 9-0 that the Recess Appointments Clause did not empower Obama to make those appointments, splitting between two opinions on exactly what that constitutional provision authorizes.

Justice Stephen Breyer wrote the majority opinion for five justices. Surveying varying historical practices since 1789, that majority held that 3-day pro forma sessions are too short for recess appointments, but the president can make recess appointments whenever the Senate adjourns for at least 10 days.

The court’s opinion also includes a caveat that is unhelpful for everyone. Specifically, the majority added that recesses that are longer than 3 days but less than 10 days are “presumptively” too short to open the door for recess appointments, but did not go on to explain what sort of circumstances could overcome that presumption so that a president could make appointments during that window.

But the practical takeaway is clear: If you want to give a president a clear alternate path for nominees who are having difficulty getting confirmed, make sure you adjourn for at least 10 days. The president will take care of the rest.

So long as there are at least 51 senators willing to adjourn for at least 10 days — or 50 senators plus the vice president as a tie-breaker — a president can make recess appointments that last roughly as long as a typical political appointment. Although the House also must consent to the Senate adjourning for that long, House procedures allow for the Speaker of the House to get such a measure through the chamber with fewer obstacles than in the Senate, so as long as the Speaker supports the move, it is harder to block consent in the House.

It is worth noting that the Constitution adds that if the House and Senate cannot agree on how long to adjourn, then the president has the authority to adjourn the entire Congress and also to set the date that members will reconvene, specifically providing that “he may adjourn them to such Time as he shall think proper.”

So if one chamber is willing to adjourn for at least 10 days but the other is not, it is conceivable that the president could adjourn them for, let’s say, 11 days, and make recess appointments during that time.

President Trump won a historic victory this month, winning both 312 in the Electoral College and the popular vote in the modern version of a landslide, generating a Red Wave that also secured a 53-47 majority in the Senate and a slim majority in the House. And while it is possible that Republicans could have won a nominal majority in the Senate without Donald Trump, it is beyond debate that they would not have as large of a majority as they have were it not for the groundswell of public support for the forty-seventh president.

Senate Democrats took their obstruction to unprecedented heights during President Trump’s first term, attempting to block countless appointees, sometimes with the tired old cliché that they claimed Trump was illegitimate. (Democrats seem think the public would forget that Democrats likewise said George W. Bush was illegitimate and used that as a pretext for obstructing his appointees as well.) But Trump’s 2024 victory was so decisive that questions about legitimacy will fall on deaf ears today, leaving only those with acute cases of Trump Derangement Syndrome — TDS for short — making such claims this time around.

The Constitution provides a path both for Senate confirmation of the president’s top picks and for recess appointments if needed, and now all eyes will be on the Senate to see what senators have the political will to do as President Trump returns to the White House.

Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the Trump White House and U.S. Department of Justice. Follow him on X (formerly Twitter) @kenklukowski.

Ken Blackwell is former U.S. Ambassador to the United Nations Human Rights Commission and is the chairman of the Conservative Action Project and vice president of the Council for National Policy. Follow him on X (formerly Twitter) @kenblackwell.

Originally Posted At www.breitbart.com

zerohedge
Economics , News , Politics , Science
December 7, 2024
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From Marcus Aurelius To Omar Little: A Man’s Code Is Vital

Authored by Josh Stylman via The Brownstone Institute,

With Thanksgiving weekend still fresh in our memory, my gratitude centers not on the usual holiday platitudes, but on something that has become increasingly precious in our artificial age: authentic relationships – both family and lifelong friends – that deepen rather than fracture under pressure. What binds these relationships, I’ve come to realize, isn’t shared opinions or circumstances, but a shared code – an unwavering commitment to principles that transcends the shifting sands of politics and social pressure. I’m particularly grateful for my inner circle – friends I’ve known since elementary school and family members whose bonds have only strengthened through the crucible of recent years.

Like many others who spoke out against Covid tyranny, I watched what I thought were solid relationships dissolve in real time. As the owner of a local brewery and coach of my kids’ sports teams, I had been deeply embedded in my community – a “man about town” whose friendship and counsel others actively sought. Yet suddenly, the same people who had eagerly engaged with me would scurry when they saw me coming down the street. Professional networks and neighborhood connections evaporated at the mere questioning of prevailing narratives. They reacted this way because I broke orthodoxy, choosing to stand for liberal values – the very principles they claimed to champion – by rejecting arbitrary mandates and restrictions.

In this moment of testing, the difference between those who lived by a consistent code and those who simply followed social currents became starkly clear. Yet in retrospect, this winnowing feels more like clarification than loss. As surface-level relationships fell away, my core relationships – decades-long friendships and family bonds – not only endured but deepened. These trials revealed which bonds were authentic and which were merely situational.

The friendships that remained, anchored in genuine principles rather than social convenience, proved themselves infinitely more valuable than the broader network of fair-weather friends I lost.

What strikes me most about these enduring friendships is how they’ve defied the typical narrative of relationships destroyed by political divisions. As Marcus Aurelius observed, “The impediment to action advances action. What stands in the way becomes the way.” Despite taking opposite sides of the dialectic on political and cultural issues over the decades, we found ourselves united in opposition to the constitutional transgressions and rising tyranny of the past few years – the lockdowns, mandates, and systematic erosion of basic rights. This unity emerged not from political alignment but from a shared code: a commitment to first principles that transcends partisan divisions.

In these contemplative moments, I’ve found myself returning to Aurelius’s Meditations – a book I hadn’t opened since college until Joe Rogan and Marc Andreessen’s excellent conversation inspired me to revisit it. Aurelius understood that a personal code – a set of unwavering principles – was essential for navigating a world of chaos and uncertainty. The connection feels particularly apt – like my own friend group, Rogan’s platform exemplifies a code of authentic discourse in our age.

Critics, particularly on the political left, often talk about needing their “own Joe Rogan,” missing entirely what makes his show work: its genuine authenticity. Despite being historically left-leaning himself, Rogan’s willingness to engage in real-time thinking with guests across the ideological spectrum and across a broad variety of topics, his commitment to open inquiry and truth-seeking, has paradoxically led to his estrangement from traditional liberal circles – much like many of us who’ve found ourselves branded as apostates for maintaining consistent principles.

This commitment to a code of authentic discourse explains why organizations like Brownstone Institute – despite being routinely smeared as “far right” – have become a crucial platform for independent scholars, policy experts, and truth-seekers. I witnessed this firsthand at a recent Brownstone event, where, unlike most institutions that enforce ideological conformity, diverse thinkers engaged in genuine exploration of ideas without fear of orthodoxy enforcement. When attendees were asked if they considered themselves political liberals ten years ago, nearly 80% raised their hands.

These are individuals who, like my friends and me, still embrace core liberal values – free speech, open inquiry, rational debate – yet find themselves branded as right-wing or conspiracy theorists merely for questioning prevailing narratives.

What unites this diverse community is their shared recognition that the reality being presented to us is largely manufactured, as explored in “The Information Factory,” and their commitment to maintaining authentic discourse in an age of enforced consensus.

In The Wire, Omar Little, a complex character who lived by his own moral code while operating outside conventional society, famously declared, “A man got to have a code.” Though a stick-up man targeting drug dealers, Omar’s rigid adherence to his principles – never harming civilians, never lying, never breaking his word – made him more honorable than many supposedly “legitimate” characters. His unwavering dedication to these principles – even as a gangster operating outside society’s laws – resonates deeply with my experience.

Like Rogan’s commitment to open dialogue, like Brownstone’s dedication to free inquiry, like RFK Jr.’s determination to expose how pharmaceutical and agricultural interests have corrupted our public institutions: these exemplars of authentic truth-seeking mirror what I’ve found in my own circle. My friends and I may have different political views, but we share a code: a commitment to truth over comfort, to principle over party, to authentic discourse over social approval. This shared foundation has proven more valuable than any superficial agreement could be.

In these times of manufactured consensus and social control, the importance of this authentic foundation becomes even clearer. The 2012 Smith-Mundt Modernization Act, which made it legal to propagandize American citizens, merely formalized what many had long suspected. It represented the ultimate betrayal of the government’s code with its citizens – the explicit permission to manipulate rather than inform. As anyone not under the spell has come to realize – we’ve all been thoroughly “Smith-Mundt’ed.” This legal framework helps explain much of what we’ve witnessed in recent years, particularly during the pandemic – when those who proclaimed themselves champions of social justice supported policies that created new forms of segregation and devastated the very communities they claimed to protect.

This disconnect becomes even more apparent in the realm of charitable giving and social causes, where “virtue laundering” has become endemic. The absence of a genuine moral code is nowhere more evident than in our largest charitable institutions. While many charitable organizations do crucial work at the local level, there’s an unmistakable trend among large NGOs toward what a friend aptly calls the “philanthropath class.”

Consider the Clinton Foundation’s activities in Haiti, where millions in earthquake relief funds resulted in industrial parks that displaced farmers and housing projects that never materialized. Or examine the BLM Global Network Foundation, which purchased luxury properties while local chapters reported receiving minimal support. Even major environmental NGOs often partner with the world’s biggest polluters, creating an illusion of progress while fundamental problems persist.

This pattern reveals a deeper truth about the professional charitable class – many of these institutions have become purely extractive, profiting from and even amplifying the very issues they purport to solve. At the top, a professional philanthropic class collects fancy titles in their bios and flashes photos from charity galas while avoiding any genuine engagement with the problems they claim to address. Social media has democratized this performance, allowing everyone to participate in virtue theater – from black squares and Ukrainian flag avatars to awareness ribbons and cause-supporting emojis – creating an illusion of activism without the substance of real action or understanding. It’s a system entirely devoid of the moral code that once guided charitable work – the direct connection between benefactor and beneficiary, the genuine commitment to positive change rather than personal aggrandizement.

The power of a genuine code becomes most evident in contrast with these hollow institutions. While organizations and social networks fracture under pressure, I’m fortunate that my closest friendships and family bonds have only grown stronger. We’ve had fierce debates over the years, but our shared commitment to fundamental principles – to having a code – has allowed us to navigate even the most turbulent waters together. When the pandemic response threatened basic constitutional rights, when social pressure demanded conformity over conscience, these relationships proved their worth not despite our differences, but because of them.

As we navigate these complex times, the path forward emerges with striking clarity. From Marcus Aurelius to Omar Little, the lesson remains the same: a man gotta have a code. The crisis of authenticity in our discourse, the chasm between proclaimed and lived values, and the failure of global virtue-signaling all point to the same solution: a return to genuine relationships and local engagement. Our strongest bonds – those real relationships that have weathered recent storms – remind us that true virtue manifests in daily choices and personal costs, not in digital badges or distant donations.

This Thanksgiving, I found myself grateful not for the easy comforts of conformity but for those in my life who demonstrate real virtue – the kind that comes with personal cost and requires genuine conviction. The answer lies not in grand gestures or viral posts, but in the quiet dignity of living according to our principles, engaging with our immediate communities, and maintaining the courage to think independently. As both the emperor-philosopher and the fictional street warrior understood, what matters isn’t the grandeur of our station but the integrity of our code.

Returning one final time to Meditations, I’m reminded of Aurelius’s timeless challenge: “Waste no more time arguing about what a good man should be. Be one.”

Tyler Durden
Sat, 12/07/2024 – 23:20