I’m still working on the first draft of the Platform for America but there will be a section about protecting and improving our democratic safeguards. Trump’s preemptive demand that Senate Republicans step aside and just let him make recess appointments to get his cabinet in place faster is a great example of why defending our constitutional system has to be high on the platform priorities. While my preference is to establish baseline principles first and then use those to evaluate actions, claims, and proposals as they come up (like that one) I think we need to talk about recess appointments and the constitutional system of advice and consent from the Senate now because we will need to understand that and be ready to defend it before we get to January 20th.
Among the many checks established in the Constitution is the requirement that the Senate vet the proposed members of a President’s cabinet (as well as judicial appointments, but that’s not the subject for today). The idea is that even the leader of the executive branch should have someone looking over their shoulder and checking their homework so to speak. The founders understood that anyone, no matter their intelligence or moral character could make mistakes. They also understood that anyone who operated with unchecked authority could quickly begin to forget where the primary source of their power was supposed to reside and who they were supposed to be working for. (That would be “we the people.”)
Understanding the realities of their day, like the fact that it could potentially take several weeks to call the Senate back into session in the event of an emergency, the founders granted the president the power to appoint people without Senate consent when vacancies occurred during a Senate recess. Tellingly those appointments automatically expired at the end of the next Senate session unless they were confirmed during the session. Recess appointments were clearly not meant to evade Senate oversight, just to keep things running when the Senate wasn’t available.
When President Obama made some recess appointments during a Senate recess the Supreme Court eventually overturned those appointments and noted as they did so that the need for recess appointments no longer really existed. What president-elect Trump is telling the elected officials of his party to do is blatantly disregard the plain intent of the Constitution. That violates not only the oath he will be swearing on January 20th but also the paths that each of them will swear earlier in January.
