President-elect Trump seeks to upend Senate confirmation process

Every new president wants to hit the ground running with a set policy agenda and a team of top officials to help push it through Congress and the federal bureaucracy. President-elect Donald Trump’s prior experience taught him one of the greatest frustrations of the job is not having the right people in the right places at the right times to push his agenda.

The policy frustrations borne of personnel turnover and disputes taught Trump to pay closer attention to top appointments from the beginning. Dedicated administration loyalists are an essential ingredient in any president’s plans. Last time, Trump seemed to learn these lessons too late to salvage significant planks of his policy agenda.

Lacking confidence in some of his Senate-confirmed Cabinet secretaries, Trump attempted to exploit the Federal Vacancies Reform Act by installing acting departmental secretaries with questionable legal authority. Another option he considered in April 2020 was to unilaterally adjourn the Congress in order to make recess authority appointments to various vacant positions. That power can only be exercised if the two houses cannot agree on a mutual adjournment date. However, at the time Trump floated his idea for a unilateral adjournment, the House and Senate had already adopted a firm adjournment date of Jan. 3, 2021, thus thwarting the president’s legal authority.

Nevertheless, the power of recess appointments clearly appealed to him. Last Sunday Trump posted on Truth Social, “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments…without which we will not be able to get people confirmed in a timely manner.”

Sen. Rick Scott (R-Fla.), one of three contenders for Senate majority leader, quickly signed on “100 percent” to the proposal. Soon thereafter the other two candidates for the position, Sens. John Thune (R-S.D.) and John Cornyn (R-Texas), also endorsed the idea to help expedite the president’s choices for top administration positions. The president-elect remained neutral on his choice for Senate leader. Thune won that election Wednesday on the second ballot.

Under Article II, section 2, clause 2 of the Constitution, “The President shall have power, by and with the consent of the Senate…to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court and all other officers of the United States….”

What Trump seeks to circumvent is the oftentimes long and drawn-out process of having to submit nominations to the Senate for its “advice and consent” in confirming nominees for administration positions. The process usually involves background checks; sometimes committee hearings are held, though committee reports on final recommendations are not required. In the past, the Senate has jealously guarded this exclusive constitutional prerogative.

Under Article II, section 2, clause 3, “The President shall have power to fill up vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session.”

In 2007, Senate Democrats, under Majority Leader Harry Reid (D-Nev.,), began the practice of holding “pro forma” (non-business) sessions every fourth day in order to block President George W. Bush from making recess appointments. Under the Constitution, “neither house… shall without consent of the other, adjourn for more than three days.” A motion to recess or adjourn is subject to a majority vote of both chambers, but is subject to a filibuster in the Senate which requires a 60-vote majority to end debate — a cloture motion.

The pro forma session ploy has been maintained to the present day, regardless of which party controls the Senate. Since the 60-vote threshold to end a filibuster in the Senate will be difficult to achieve with only 53 Republican senators, it will be interesting to see how Trump and his Senate Republican allies clear the way for recesses to allow for presidential recess appointments.

A Senate rule change would only require a majority vote, but that too would run-up against a filibuster threat and the three-fifths cloture vote to end a filibuster. Unlike the House, the Senate does not adopt a new set of rules at the beginning of each Congress. It is a “continuing body” (only one-third of its members are up for election every two years). Thus, its rules carry-over from Congress to Congress with no vote needed to readopt them.

The Senate has historically prided itself on being the world’s greatest deliberative body. As time goes on it is proving itself to be less deliberative and more submissive to the wishes of presidents.

Don Wolfensberger is a 28-year congressional staff veteran culminating as chief-of-staff of the House Rules Committee in 1997. He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).