SIOUX FALLS, S.D. (KELO) — As of Nov. 15, the soon-to-be U.S. Senate Majority Leader John Thune said he does not favor recess appointments for President-elect Donald Trump’s cabinet.
“My preference is going to be to grind it out the way we normally do it,” Thune said in response to a recess appointment question from KELOLAND News.
Trump has asked for a recess to allow him to appoint cabinet members without Senate hearings. A recess appointment expires at the end of the following session of the Senate, according to the Congressional Research Service. The appointments are not permanent in terms of a running through a President’s administrative term.
Thune said while his preference is to have hearings in which people have an opportunity to speak about the appointees, “at some point you’ve got to vote.”
He would object to attempts to slow the process down, he said.
Thune said while his preference is the conventional appointment approval, recess is still on the table as a possible option. House Speaker Rep. Mike Johnson said on Fox News Sunday that he’d be open to recess appointments for Trump’s picks.
“It’s complicated to do,” Thune said of recess appointments. “It’s not easy. (The) House and Senate both have to pass concurrent resolutions to do it. An adjournment motion is not debatable on the floor of the Senate but it is amendable, so Democrats can try and drag it out by amendment. In the end it’s a 51 vote threshold. But if you have a nominee that can’t get 52 Republican votes, on an up and down vote you may have a hard time getting 51 votes do it under a recess appointment too.”
In order to make recess appointments, the Senate would need to recess for 10 days or more by majority vote. This is based on a 2014 U.S. Supreme Court case in which the court said “the general practice that recess of more than three days but less than 10 days is presumptively too short
to trigger the President’s appointment power,” according to the Constitution Annotated.
Another way, based on Article II, Section 3 of the Constitution, if Senate does not adjourn the president can adjourn Congress (both the House and Senate). The president would then make recess appointments. This would need the cooperation of the House Speaker. It’s an action used rarely, constitutional scholar Ed Whelan said in the National Review.
Gov. Kristi Noem, the nominee for Secretary of Homeland Security, weighed in on the process in her weekly column released on Friday.
“I respect the Senate’s role to engage fully and openly on the upcoming confirmation process. I look forward to discussing our nation’s security challenges and my commitment to addressing them head-on,” Noem said in her column.
U.S. presidents have used recess appointments before. Most have been for lower level cabinet posts and not those of the Secretary of Defense or U.S. Attorney General.
President George W. Bush made 171 recess appointments. President William J. Clinton made 139 recess appointments during the course of his presidency, according to the the Congressional Research Service. President Barack Obama made 32 appointments.
Not all recess appointments make it.
Twelve of Obama’s 32 appointments were returned or they were withdrawn by the president. Ninety-five of Bush’s were confirmed and the remaining 70 were not.
Recess appointments faced obstacles during the Obama administration and Bush administration.
In 2011, neither the House or the Senate recessed in order to block any potential recess appointments by Obama. In 2007, Sen. Majority Leader Harry Reid, a Democrat, called pro forma sessions of the Senate in order to block recess appointments by Bush. Members of the Senate met every few days in the pro forma format in November.
The 2014 Supreme Court ruling struck down Obama’s recess appointments to the National Labor Relations board.
President George Washington noted in 1790 that presidents had the constitutional power to make recess appointments. Washington made several recess appointments, according to the National Archives,
According to the National Archives, the Founders of the constitution intended for recess appointments to ensure the government could work when an office holder died or resigned or when Senate was not in session. The History website said these appointments were temporary and prompted because of the limitations of transportation didn’t allow Congress to convene quickly.
