What are recess appointments and why would Trump want them?
Summary
The president-elect is calling on the Senate to step aside so he can install some appointees without confirmation. Here’s a closer look at that process.
Although Republicans are set to take control of the Senate in January, President-elect Donald Trump has demanded that the chamber suspend its power to confirm nominations and instead go out of session so that he can use “recess appointments" to install at least some administration officials, such as cabinet secretaries, without Senate approval. Here is a closer look at that process.
How are federal officials appointed?
The Constitution empowers the president to appoint ambassadors, judges and “other Officers of the United States," subject to “the Advice and Consent of the Senate." Today, more than 1,000 senior positions in the federal government require Senate confirmation, making the process of nominating and confirming officials a frequent source of tension between the executive and legislative branches, particularly during periods of divided government.
Senators have sometimes slowed down the confirmation process to extract concessions from the White House, at times over issues that have nothing to do with the vacancy being filled. But the framers of the Constitution viewed the division of authority between presidential nominations and Senate confirmations as a way to promote good government through better qualified officials.
What are recess appointments?
The Senate wasn’t conceived to continuously be in session, and the vagaries of 18th century communication and transportation meant that weeks could go by before lawmakers could be reconvened for an emergency. To keep the government staffed, the Constitution provides that the president may fill vacancies while the Senate is in recess, but those commissions expire at the end of the next session of Congress. That means a recess appointee can’t hold office longer than two years, the length of a congressional session.
How have recess appointments been used?
In practice, impatient presidents have sometimes used the recess-appointment power to bypass an intransigent Senate. The most ambitious episode may have come on Dec. 7, 1903, when the second session of the 58th Congress was scheduled to begin immediately upon the expiration of the first session. President Theodore Roosevelt seized on that split-second intersession to make 193 recess appointments.
More recently, Ronald Reagan and George W. Bush each made more than 150 recess appointments over their two-term presidencies. Barack Obama made less frequent use of the power, but it was his effort to recess-appoint four members of the National Labor Relations Board that prompted the Supreme Court to limit the practice.
The court in 2014 unanimously held that Obama exceeded his authority. Five justices, citing centuries of historical practice, found the president could make such temporary appointments when the Senate ceases conducting business for at least 10 days. The four most conservative justices, three of whom remain on the court, would have gone further still. Justice Antonin Scalia said the recess appointment power was obsolete. “The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process," he wrote.
As a practical matter, however, the decision made it simple for the Senate to prevent recess appointments by convening pro-forma sessions during de facto recesses within 10-day periods.
If Republicans will control the Senate, what does Trump gain in bypassing them?
Nominees can be confirmed by a simple majority vote in the Senate, but the confirmation process can be a bruising one. If Republicans allow Trump to install officials without the Senate’s advice and consent, the president-elect in theory could build out his roster of top officials more quickly. It also would limit public scrutiny and deny Democratic senators a chance to question Trump nominees, as candidates typically are required to submit background materials and testify before Senate committees. Eliminating a confirmation vote removes the risk that a handful of Senate defectors could sink a highly controversial nominee.
What have GOP senators said so far?
Republicans vying to be Senate majority leader have issued statements opening the door to the idea that the Senate should adjourn for long enough to allow Trump to appoint at least some officials without Senate approval. “100% agree," said Florida Sen. Rick Scott, a favorite of Trump allies, in a social-media post. “I will do whatever it takes to get your nominations through as quickly as possible."
Are there other ways to temporarily fill high-level government vacancies?
The Vacancies Act specifies the way that many federal positions should be filled when a Senate-confirmed nominee isn’t available. Typically, the vacant position’s first assistant becomes the acting official, or the president can designate a different Senate-confirmed official or a federal officer of similar rank to serve as the acting officeholder. Boards and commissions can’t be filled through the Vacancies Act, however, and some statutes specify the chain of succession in particular agencies.
In status-conscious Washington, recess appointees are treated as if they were Senate-confirmed, which conveys prestige and a degree of deference. In past administrations, acting officials have tended to behave with greater circumspection than Senate-confirmed appointees.
This explanatory article may be periodically updated.
Write to Jess Bravin at Jess.Bravin@wsj.com
