Donald Trump Has a Good (and Overdue) Idea

Cabinet confirmations should be as fast as when Ronald Reagan made the nominations.

“The executive power shall be vested in a President of the United States of America.” So says Article II, Section 1 of the Constitution. The executive power is constrained in many ways. One of those is the requirement that the principal “Officers of the United States” be appointed with “the Advice and Consent of the Senate” (Article II, Section 2, second paragraph).

Since one man cannot actually perform all executive functions, officers to carry out his will are a necessity, and it is obviously inconsistent with vesting the executive power in the President to make him rely on instruments in which he lacks confidence. The norm throughout American history, until the day before yesterday, was prompt confirmation (or rejection) of Presidential nominees, particularly when a new Administration came into office, and most particularly when the previous President was of a different political party. Until the incoming President can fill positions, the executive power is of necessity exercised by appointees of his predecessor. That is an undesirable situation, the less desirable the longer it continues.

In 1981, twelve of President Reagan’s thirteen original Cabinet nominees were confirmed by the Senate within two days after his inauguration. The outlier’s confirmation needed fourteen days.

The situation is now far different. Only three of President Biden’s 15 initial nominees were confirmed in January 2021. Five received the Senate’s approval in February, and seven in March, the last on March 22nd. President Trump in 2017 saw three confirmations in January (one of the wife of the Senate majority leader), seven in February, three in March and two in April. Note that the slow walking of nominees isn’t an outgrowth of hyper-partisanship. In both 2017 and 2021, the President’s own party controlled the Senate.

The problem is simply that the confirmation process has accumulated so many barnacles that the vessel now wallows in irons. It is not as if Presidents have developed a habit of nominating obscure figures whose backgrounds need exhaustive review. Yet notwithstanding their long public résumés, most of these men and women are subjected to extensive background checks, lengthy questionnaires and contentious hearings. I cannot recall a single instance in which that probing turned up one hitherto unknown and significant fact about the nominee.

Having experienced this gantlet, a torture for both himself and his nominees, the President-elect has called on the candidates for Republican Senate majority leader to modify it. His proposal is that, for some key positions, the Senate allow the President’s nominee to be installed in office first and confirmed by the Senate afterward. The mechanism is the President’s “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” (Article II, Section 2, third paragraph). The President would submit nominations to Cabinet positions and a few others of especial importance. The Senate would then recess for a few days. The President would recess appoint his nominees, who could then begin carrying out their duties while the Senate considered whether to confirm them.

This alternative process would not diminish the authority of the Senate. The President cannot compel it to go into recess, and it can remain formally in session even through its euphemistically named “district work periods”, a tactic by which it has frequently prevented recess appointments. That it recessed voluntarily with the understanding that particular persons would receive appointments to particular posts during the recess would be a de facto exercise of its power to advise and consent, and it would retain the right to reject the nominations. Seeing the nominees in action would furnish valuable additional information on which to base its judgment.

A Senate majority leader with any loyalty to his institution would naturally insist that the President agree to some conditions, viz., that the roster of recess nominees be announced in advance, that each be formally nominated before the recess, that each sign a letter of resignation that would become effective if his nomination was rejected by the Senate or withdrawn by the President, and that the recess procedure be used only for initial appointments to executive branch positions. (After the Administration has been in place for a while and appointed subcabinet officers, there is negligible prospect that executive functions will fall into the hands of holdovers from the opposite party. And there is no reason at all to extend the recess procedure to judicial appointments.) The Senate would have ample means of punishing a President who tried to evade those conditions.

Not too surprisingly, this idea has gotten a frosty reception, because it is a brain child of Donald Trump, and the assumption of all but his inner circle is that all offspring of his brain must be illegitimate. This one, however, is true born. It’s a pity that no one else thought of it sooner.