Understanding Senate recess appointments
Mitch McConnell has already said that there will be no recess appointments in the Senate. Mitch is the democrat’s new best friend, it seems. Americans are hearing a lot about recess appointments as incoming president Trump announced some controversial nominations like Matt Gaetz, Pete Hegseth, Tulsi Gabbard, and Robert F Kennedy Jr. to mention a few. It is quite rare that a president’s proposed cabinet member does not get approved by the Senate. Last time was in 1989. President George H. W. Bush nominated John Tower, a former Senator, to be Secretary of Defense. He was investigated over claims of drunkenness, womanizing, and ties with defense contractors. The Senate rejected Tower by a vote of 47–53.
Understanding when and how the constitution empowers presidents to make those appointments is key to grasping how Trump plans to implement a bold agenda to move the country 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.
Recess appointments are in the news as Trump weighs his options for staffing up his administration, including the possibility of recess appointments. This strategy is the predictable result of democrat lawfare and obstruction in recent years.
When Republicans retook the White House in 2000 after a bitter and contentious election, Senate democrats expanded their judicial obstruction to include federal appeals courts, and democrats tried to systematically block or delay key executive nominations. Expanding this obstruction to the executive branch poses new challenges because it hampers governmental functions.
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.
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. Obama had 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.
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.
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 tiebreaker, 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. Good for Trump that he controls both chambers.
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. 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.
Senate democrats took their obstruction to unprecedented heights during Trump’s first term, attempting to block countless appointees. 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 Trump returns to the White House. It will likely be messy.