Brehm: Trump’s recess appointment scheme is reckless

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During the 2024 campaign, prominent Democrats liked to label Republicans as an existential threat to democracy. Vote for our ticket, they browbeat, or our institutions will come crumbling down. It turned out that intimidation tactic did not play well, with the American people summarily rejecting it at the ballot box. Voters, it seems, don’t like to be lectured at. But part of the reason, too, that contention fell flat is how little credibility many liberal-leaning leaders have on the issue of preserving democratic norms. For instance, Minnesota’s own DFL Sen. Tina Smith is no champion of protecting constitutional and legislative custom, having strongly advocated for eliminating the Senate filibuster, toying with the Electoral College, and packing the Supreme Court to better serve her progressive policies and party. And her views were certainly not unique within the former Democratic majority of the U.S. Senate.

It will be tempting for Republicans now in full command of both Capitol Hill and the White House to use Democrats’ past support of reckless tinkering with our legislative process as license to pursue the same. But we should not take the bait. Whataboutism is not responsible governance. The American founders designed our republican form of government to protect political minorities, hold the commander in chief in check and make broad congressional consensus required to pass meaningful reform. While the American people gave the GOP a stout electoral mandate to pursue a substantive conservative agenda, and it should, voters also value the special republican form of government we have in place and do not want it distorted. The Republican-controlled 119th Congress will swear an oath on Jan. 3 to uphold the Constitution of the United States, and it should be faithful to it.

That must start with its rejection of an unconstitutional idea floating around President-elect Donald Trump’s transition team that the new commander in chief should maintain the option at the outset of his term to instigate blanket recess appointments of his entire Cabinet in order to bypass the Senate’s advice-and-consent role altogether.

Trump won his second term by large margins on promises to reform the way Washington works, and the change agent officers he wishes to appoint to serve in his White House deserve a certain level of deference. But under Article II of the Constitution, the presidential power to appoint principal administrative officials is explicitly conditioned that those nominations receive the “advice and consent of the Senate.” The American people duly elected the 100 members of that body, too, and senators have a duty to see that their constitutional responsibilities in the presidential nomination vetting process are properly fulfilled.

As Alexander Hamilton explained in Federalist Paper No. 76, the Senate’s capacity to approve or reject presidential appointments affords “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.” One of the ingenious features of our republican form of government is that each branch’s authority is limited by the others. The president’s power to fill his Cabinet is not absolute by design.

Gutting the Senate’s constitutional role in approving Trump’s nominees would require that the Senate be complicit in it and voluntarily go into recess right after he is sworn in on Jan. 20. Doing so would be a doleful display of submissiveness by a Senate majority leader at a time when Republicans rightly wish to reclaim more of Congress’ powers back from what has become a heavy-handed executive. The new Republican Senate Majority Leader John Thune is a serious man, and he should not kneel to this demand should Trump make it. And if he does not, as I suspect will be the case, the new Senate GOP majority will deserve far more credit for protecting congressional norms than its Democratic predecessor, which there is nary an example of it pushing back on President Joe Biden’s many attempts to exercise powers outside the Oval Office’s constitutional limits, such as his bid to bypass Congress and unilaterally forgive hundreds of billions of dollars in higher education debt.

Many of Trump’s Cabinet nominees thus far have been excellent. The likes of Marco Rubio for secretary of state, Susie Wiles for White House chief of staff and Elise Stefanik for U.N. ambassador will have no trouble sailing through the confirmation process. Others may face more scrutiny, but being in the president’s Cabinet is a big deal and a tough job interview can be warranted. But if Trump feels certain his selections are dead on arrival at a Senate controlled by his own party, he has picked unwisely and should choose again.

To be sure, the U.S. Senate has at times abused its “advice and consent” powers and hijacked well-qualified nominations for political exploitation. The way Senate Democrats treated Clarence Thomas and Brett Kavanaugh at their Supreme Court confirmation hearings was a disgrace and brought shame to what is supposed to be the world’s greatest deliberative body. The presidents who nominated these good and decent public servants were right to stick by them. And justice ultimately prevailed.

But we must always remember that freedom is a special thing when one takes a broad view of world history. Totalitarianism has been the default form of government for most peoples for most of human existence. Americans have been able to enjoy their liberties for so long not only because of the brave men and women who fought and died for them, but also owing to the brilliant constitutional regime of separation of powers we inherited that intentionally frustrates the unbridled will of any one man or political majority. We would do well not to meddle with that, but instead respect and appreciate it — even when it means the party in power, and even when it is our own, does not get its way on all things. Maintaining American freedom demands it.