Why Recess Appointments are an Affront to the Constitution

By Daniel Schmid

As the Trump-Vance administration shapes up and selects its cabinet and team of advisers, the looming Senate confirmation process that may prove a challenge for certain picks brings up the possibility of recess appointments.

The brilliance of the Constitution is that it provides a structural safeguard for the fulfillment of executive offices by requiring high officials of the Republic to discuss and agree upon the caliber of man that may fill an office. But, in times when delays are inevitable and problematic, the Founders built in a constitutional safety valve known as the Recess Appointments Clause — which was designed to be the exception, not the rule.

The Recess Appointments Clause in the Constitution allows the president to bypass the Senate and confirm a cabinet pick in case of emergency. While recess appointments aren’t a new phenomenon and have been utilized (or abused) by most presidents in modern history to quickly confirm positions that require Senate approval, they should never be the default in confirming candidates just to quicken the process and avoid Senate deliberation.

The advice and consent of the Senate, though not explicitly stated as such, is essentially grounded in Scripture because as Proverbs 11:14 says, “In the multitude of counselors there is safety.”

What is a Recess Appointment?

As with any question involving the meaning of a constitutional provision, one must start with the relevant text. Article II, Section 2, Clause 2 states: The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const., art. II, §2, cl.2.

What this means, in layman’s terms, is that the president gets to nominate officers of the United States but must first receive the advice and consent of the Senate before they take office.

While that seems simple enough, problems can arise in situations when the Senate is not in session and thus cannot fill an important position. So, in their infinite wisdom, the Founders determined that an emergency provision was necessary to prevent lengthy vacancies in positions that cannot, in the interest of the United States’s citizens, remain vacant for extended periods. Thus, Article II, Section 2, Clause 3 was inserted, stating “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.” U.S. Const., art. II, §2, cl.3.

Presume for the sake of argument that the United States is at war with a foreign adversary. Congress has formally declared a recess for the Christmas holiday season and thus will be absent from Washington for weeks. In this time, if the Secretary of Defense dies of a heart attack, the United States’ national security interests are compromised by an emergency vacancy at the head of the nation’s military. The commander in chief should not be forced to wait until Congress returns to be able to fill the defense secretary position with the traditional confirmation process, so a Recess Appointment permits the president to staff his Cabinet with necessary individuals temporarily while still preserving the Senate’s constitutional check of advice and consent. That is why Article II, Section 2, Clause 3 makes the recess appointment temporary, i.e., it “expire[s] at the End of their next Session.”

Emergency situations such as this are what Recess Appointments are intended for, not for matters of expediency.

The need for a recess appointment was significantly more imperative when one considers the history of the Republic. When senators traveled by horseback to their home states, a recess appointment provision was necessary because it could be quite a while before the Senate could return from recess. Justice Antonin Scalia opined that the recess appointment was essentially an anachronism now given that in today’s world, senators travel by plane and have a host of other options at their disposal.

Affront to the Constitution

The Supreme Court has stated time and again that the Senate’s power to advise and consent is a “critical structural safeguard of the constitutional scheme,” Edmond v. United States, 520 U.S. 651, 659 (1997), and noted that the Founders of the Republic viewed it as “an excellent check upon a spirit of favoritism in the President” and a guard against “the appointment of unfit characters from family connection, from personal attachment, or from a view to popularity.” The Federalist No. 76, p. 457 (C. Rossiter ed. 1961) (A. Hamilton).

The Supreme Court has also noted that the structure of the Appointments Clause ensures quality appointments and officers are made. The Appointments Clause of Article II is more than a matter of “etiquette or protocol,” Buckley v. Valeo, 424 U.S. 1, 128-131 (1976). “By vesting the President with the exclusive power to select the principal (noninferior) officers of the United States, the Appointments Clause prevents congressional encroachment upon the Executive and Judicial Branches.” Edmond, 520 U.S. at 659. “This disposition was also designed to assure a higher quality of appointments: The Framers anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism than would a collective body.”

The Court has also noted that the reasons for the Advice and Consent of the Senate is to protect both the President and the Senate — and, most importantly, the citizens of the Republic. Absent the Appointments Clause, the blame could fall squarely on one man (or the Senate if it refused to consent).

Hamilton said, this time in Federalist 77, “The blame of a bad nomination would fall upon the president singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the senate; aggravated by the consideration of their having counteracted the good intentions of the executive. If an ill appointment should be made, the executive for nominating, and the senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.”

The constitutional process of presidential appointment and Senate confirmation, however, can take time because the president may not promptly settle on a nominee to fill an office; the Senate may be unable, or unwilling, to speedily confirm the nominee once submitted. That is not a flaw in the system but is its functional design.

Recess appointments have a clear and specific purpose outlined by our Founders in the Constitution. Not for expediency or for personal satisfaction, the constitutionally mandated Senate confirmation process is far superior to ignoring checks and balances.

Outside of their intended purpose, recess appointments are an affront to the Constitution of our limited government. It would be wise if President-elect Donald Trump allows the Republican-majority Senate to promptly confirm his administration picks the way the Constitution prescribes. And, the Senate would be wise to confirm his nominees with all deliberate speed so his administration can hit the ground running on what he was elected to do.

Originally published in the Washington Times.

To read more from Liberty Counsel Associate Vice President of Legal Affairs Daniel Schmid, visit HERE.