(Bloomberg) -- Schoolchildren can’t wait for recess. The US Senate goes to great lengths to avoid it.
A recess, for the Senate, means giving up power to the president — especially the power they share under the Constitution to make appointments to key executive posts, including the president’s cabinet.
President-elect Donald Trump is asking the incoming Senate, which will be controlled by his Republican Party, to temporarily go out of session once he’s inaugurated Jan. 20 so that he can jam through nominations in what are known as recess appointments. Though such appointments are legal and were once common, Trump’s attempt to make a wholesale end-run around the Senate’s time-honored role is unprecedented in modern history.
What is a recess appointment?
The US Constitution empowers the president to appoint judges, ambassadors, and other top officials “by and with the Advice and Consent of the Senate.” But the 18th century founders of the country were worried that long travel times might make it difficult for senators to return to the capital to fill that role. So they added a failsafe: they gave the president the power to fill “all vacancies” during a Senate recess, with the provision that the commission expires at the end of the Senate’s next session, which in this case would mean in January 2027 at the latest.
Why does Trump want a recess?
Days after securing his election to a second presidency, Trump said in a post on his social media outlet Truth Social, “We need positions filled IMMEDIATELY!” He charged that Senate votes on appointments sometimes “can take two years, or more” — which is inaccurate, given that if a nomination hasn’t been approved by the end of a two-year Senate session it automatically expires and that most languishing nominees withdraw long before that.
Still, it’s true that recess appointments would bypass a confirmation process that has grown longer over time. President Joe Biden’s initial cabinet members faced an average wait of 32 days, up from same-day confirmations a generation ago. Trump’s more controversial nominations — including Matt Gaetz for attorney general, Robert F. Kennedy Jr. for Secretary of Health and Human Services, and Pete Hegseth for Secretary of Defense — are in danger of being stalled indefinitely or rejected outright.
How likely is the Senate to agree to a recess?
It would take a majority vote to call a recess. When the new Senate convenes Jan. 3, Republicans will control 53 of the 100 seats, with Vice President-elect JD Vance, who will also serve as president of the Senate, able to cast tie-breaking votes. But the party isn’t uniformly behind Trump on this. Senator John Thune — who was chosen to lead Republicans in the Senate over Rick Scott, the favorite of billionaire Trump benefactor Elon Musk — told Fox News that he preferred to install presidential nominees “the regular way.” Thune left open the possibility of recess appointments should Democrats use procedural tactics to block nominations. But he added that if Trump nominees also faced opposition from Republicans, those same senators would likely object to a recess as well.
What if the Senate refuses to recess?
Trump has another option: He can try to force the Senate to adjourn with the help of the House of Representatives, which Republicans will also control in January. Under the Constitution, one chamber can’t adjourn for more than three days without the consent of the other. But if the House wants to adjourn and the Senate doesn’t, the president “may adjourn them to such Time as he shall think proper.” While Trump has considerable influence over Republican House members, his party’s majority there is razor thin, and a handful of Republicans could join with all Democrats to block a recess.
How common are recess appointments?
They used to be routine. But as with many things in Washington, they’ve come to be seen through a partisan lens because of political polarization and the breakdown in trust between the two major parties. “This is not a phenomenon unique to Trump,” said Anne Cizmar, an Eastern Kentucky University professor who studies presidential appointments.
A turning point came during the presidency of Democrat Barack Obama, when the Senate began using so-called pro-forma sessions to block his recess appointment power. This involves a senator — usually a junior senator of the majority party from a state close to Washington DC — coming to the Capitol, banging a gavel, and immediately adjourning the chamber. The session, which takes less than a minute, is long enough for the Senate to say it’s theoretically able to conduct business — a tactic that can block both recess appointments and a presidential “pocket veto,” which is a veto when Congress is out of session that can’t be overridden.
In early 2012, between two such sessions, Obama tried to install four nominees — three at the National Labor Relations Board and one at the Consumer Financial Protection Bureau as recess appointments. In 2014, the Supreme Court decided in National Labor Relations Board vs. Noel Canning that the Senate was not in recess and the appointments were invalid.
Can senators block appointments using the filibuster?
The filibuster is a prerogative rooted in Senate rules to demand never-ending debate in the chamber. While it can be deployed to thwart legislation, since 2013 senators have only been able to use it to slow, not stop, the confirmation of presidential nominees.
How many recess appointments could Trump make?
There are 1,093 presidential appointments in the executive branch that require Senate confirmation, from the Secretary of State to members of the volunteer board of the Morris Udall Scholarship Foundation. Recess appointments could be used to fill all of them — and possibly the 45 judicial vacancies now pending. The tradeoff: those appointed during a recess can serve two years at most unless confirmed or extended by another recess appointment — perhaps limiting their effectiveness in the long run. “For Trump, probably installing the person you want to do things immediately is more important than the longevity of the person,” Cizmar said.
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