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Ed Whalen's back at our desk.
He is the past president, current Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center at Whalen.
Remind viewers what EPPC is.
Well, we're a think tank, the premier think tank in D.C. dedicated to applying the Judeo-Christian moral tradition to the broad range of issues of public policy.
And how long have you been there?
20 plus years now.
Past president, as we said, expertise in constitutional studies.
Two weeks ago in the National Review, you wrote a column about, you called it the, quote, terrible anti-constitutional scheme of recess appointments.
Why is it a terrible and anti-constitutional scheme?
Well, what I'm referring to is the idea that's being talked about that Donald Trump would try to force the Senate to adjourn, perhaps right on Inauguration Day, and proceed to make blanket recess appointments to top cabinet offices.
That would be, I think, an outrageous upsetting of the constitutional scheme, which contemplates that the Senate will give advice and consent, especially on high offices.
Now, as Hamilton explained in the Federalist Papers, this provision in the Constitution that gives the Senate authority to advise and consent on nominations is really important in making sure that the president makes high-quality picks.
Absent that check, the president could indulge his own whims, his own favors, and as Hamilton put it, might even appoint someone simply because that person possesses a necessary insignificance and pliancy to render him the obsequious instruments of the president's pleasure.
So this was a fundamental feature of the Constitution.
It is a fundamental feature.
And yes, to be sure, there is also a provision for recess appointments in the Constitution.
That, as Hamilton put it, is an auxiliary provision designed to supplement this core provision.
This recess appointment scheme would turn things on its head, and there's never been anything like it in American history.
Take us back a step.
What does advise and consent mean in constitutional terms?
That's the process by which the Senate decides whether to approve or reject a president's nominees.
So it's usually a majority vote process.
A nomination goes through the Senate, goes through a hearing in the appropriate committee, and then is voted up or down by the Senate.
So why were recess appointments put in in the first place?
What was the point of them?
The recess appointment provision, it's quite clear, was put in to address the situation in which the Senate was not available to act on a vacancy, a nomination to vacancy that had just arisen.
It's been interpreted very expansively, and I'm fine for present purposes on that expansive interpretation.
I'm not challenging that when I raise my objections to President-elect Trump's scheme.
The problem is that, again, he will try to force a recess of the Senate, something that plainly is way outside the purpose of the recess appointments provision, in order to bypass the Senate's advice and consent provision and install high-level cabinet officers.
How does one force a recess of the Senate?
Well, that's a good question.
There are two paths that President Trump or his advisors have apparently been considering.
The first would be to coax and cajole the Senate into recessing itself.
So I would not call that forcing.
It would be, I think, a shameful act if the Senate were to do so.
I don't think it will.
But the scheme to force would use, or I would say misuse, a provision of the Constitution that enables the President to adjourn both houses in the event of a disagreement between the Houses on the time of adjournment.
This is in Article II, Section 3 of the Constitution, I believe.
It's a provision that's never been used before.
It's one that I don't think could lawfully be used in this instance.
But the idea would be to have the House collude with the President to force the Senate out of session.
What would be the point of giving the President that power in the Constitution?
Well, I think the basic point is that sometimes the Houses might disagree on whether the other House can adjourn.
Let me go back a step.
The House, I'm sorry, the Constitution says that if a House is to adjourn for more than three days, it needs to get the consent of the other House.
So you can imagine a situation in which one House doesn't consent to the adjournment of the other.
And in that situation, you might need a tiebreaker.
The President can come in and adjourn them both, the provision says.
Now, what we have here is not a situation in which the Senate would be seeking to adjourn and wouldn't be getting the House's consent.
On the contrary, it's a situation in which the Senate would want to stay in session.
And there's no role for the House to object to the Senate staying in session.
Any disagreement on the House's part with the Senate staying in session is no more constitutionally significant than your or my disagreement with that.
So I don't think it possibly gives rise to a disagreement within the meaning of Article II, Section 3.
26 minutes ago on C-SPAN, viewers saw a pro forma session.
What is a pro forma session?
It was one in the House, but they also have pro forma sessions in the Senate as well.
That's correct.
Pro forma sessions have become fairly common, as I understand it, in the Senate since the Supreme Court's ruling 10 years ago on recess appointments in a case called NLRB versus Noel Canning.
They might well have existed before then.
I'm not fully aware of the history.
But the idea is to prevent a recess of sufficient length that the President could make a recess appointment during that time.
What the majority said of Noel Canning is that a recess of 10 days is presumptively enough to allow an intra-session recess appointment.
If you have these pro forma sessions every three days, you never have a 10-day recess arise.
Did the Constitution ever contemplate the idea of senators turning over their advice and consent power to a president by saying, we will not be in session and allow you to do a recess appointment?
Well, I think it's a deeply anti-constitutional idea.
I don't see anything in the Constitution that contemplates it.
Is it within the bounds of the Senate to abdicate its responsibility?
Sure, I suppose.
But I think it's, as I say, deeply objectionable.
Deeply objectionable.
There are some senators arguing for this process.
Bill Hagerty was one of them on ABC's this week on Sunday.
I want to play about a minute and a half of his interview.
The issue of recess appointments, you know, Trump had suggested and wanted John Thune to agree to it, the idea that if he can't get confirmation on any of these, that he could bypass the Senate and do what's called recess appointments.
Is that still on the table?
Do you think that's still something that Trump is considering?
It is and should be on the table, John.
President Reagan's used it.
President Clinton used it.
George W. Bush used it.
This is a constitutionally available tool.
What we want to see is Democrats cooperate with us.
But if the resistance movement gets as heavy as it was, I've been through the process myself of confirmation.
I turned my paperwork in on the 21st of January.
I didn't get through the process till July.
So we need to see things move in a far more expeditious pattern.
We need to see things move quickly.
The American public has spoken in that regard, as I said in the beginning.
President Trump is ready for action.
We need to put a team in place around him, and he needs every tool at his disposal to do that.
Recess appointments have certainly been used.
Barack Obama named members famously to the National Labor Relations Board in a recess appointment, but never, as I understand it, for positions as important as cabinet secretaries of the largest cabinet agencies.
And let me just ask you, just finally, you mentioned if Democrats are obstructing, would he do that or try to do that if he didn't have the Republican votes to get somebody confirmed?
Because that's the issue.
If he doesn't have the Republican votes, would he try to bypass the Senate and appoint a major cabinet secretary in a recess?
Again, John, I haven't spoken with President Trump about the specific plans.
What he wants to do is see these appointments made quickly.
He wants to see us get through the confirmation process.
And again, I think everything should be on the table.
And I think if my colleagues understand that, they'll know that they need to step up and move expeditiously to get these cabinet members confirmed.
Republican Senator Bill Hagerty of Tennessee on the Sunday shows this week.
He called it a constitutionally available tool.
Well, I will charitably construe his comments as not embracing the scheme of blanket recess appointments at the outset.
You can't have everything on the table when you knock everything else off the table and just have this.
So I think he's interested in making sure that nominations get confirmed promptly.
Perhaps down the road, there might be occasion for a recess.
I want to emphasize, though, that there are tremendous advantages that President-elect Trump has that most previous presidents never had.
And these advantages make the comparisons to, say, Ronald Reagan completely inapt.
For starters, he has a large majority in the Senate.
He has the filibuster having been abolished for executive branch nominees.
So you can't have a single senator put a hold on and threaten to go through the whole cloture process and tie things up.
There was the adoption of a two-hour rule with respect to post-cloture on not on cabinet officers, but on other officers.
It ought to make it very easy to get those confirmed.
There is the Federal Vacancies Reform Act that was adopted in 1998 that Reagan did not have the advantage of, which enables him to put acting officers in place in a broad range of positions throughout the federal government.
So there are a host of reasons why he does not face some sort of crisis.
be able to work things through the process and get competent nominees confirmed quickly.
Indeed, if I may, hearings can start as early as January 3rd.
Formal nominations can't be submitted until January 20th, but you can have cabinet officials confirmed on January 20th and appointed on that date.
President Trump had three confirmed and appointed on that date back in 2017.
There's no reason he can't have at least that many, probably more.
Just on those comments, are you saying that the bar is lower to achieve the advice and consent of the Senate than it used to be for cabinet officials?
It's a lot lower now with the abolition of the filibuster.
That is just a huge change.
You have a majority in the Senate.
The Democrats have virtually no tools to obstruct.
In the past, the minority would have had a huge ability to obstruct.
When I say in the past, this is before 2013.
So it is a huge difference, absolutely.
Let me get some calls on the line for you.
Ed Whelan with us until the top of the hour end of our program, 10 a.m. Eastern.
It is 202-748-8000 for Democrats.
Republicans, 202-748-8001.
Independents, 202-748-8002.
We're talking about recess appointments, but also a good person to ask your judicial questions of questions about judgeships.
Ed Whalen can cover it all for you.
Joseph is up first in Point Pleasant Beach, New Jersey.
Republican, good morning.
Hey, John, how are you?
Good morning.
Just listening to the guest.
I'm listening to, and neither one of you guys mentioned that President Obama did it 32 times.
And I don't want to hear things were different with Reagan.
Obama was 10 years ago.
He did it 32 times.
You guessed it mention that.
This is just another thing.
You guys are in your bubble in D.C. and you're against Trump.
Trump hasn't mentioned it once yet, and the guy likes to talk.
He hasn't mentioned it once.
Guys are talking about it, maybe they are discussing it.
But now when Trump thinks about it, it's unconstitutional.
But when Obama did it, it was okay.
And you guys didn't mention that.
Ed Whalen.
Well, respectfully, Joseph misses the point.
Again, I'm fine on recess appointments being made.
The question is whether you make blanket recess appointments at the outset of a presidency.
Barack Obama did not do that.
There's simply no comparison between what President-elect Trump is said to be considering and what Barack Obama did.
Now, I'm sort of twisted between, oh, it's a great idea, and oh, he's not even thinking about this crazy idea, so I'm not quite sure how to respond to that.
What did Barack Obama do?
Barack Obama made recess appointments.
I know during intra-session recesses, perhaps during intercession as well.
He had the Supreme Court strike down unanimously three of his appointments, I believe it was, to the National Labor Relations Board in this case I referred to before, NLRB v. Noel Canning.
But again, recess appointments have been made in the past.
It's a perfectly proper tool when the Senate is actually in recess.
Forcing the Senate to recess in order to make blanket recess appointments of cabinet officials at the outset of a president's term is a far cry from that.
It's not apples to apples.
It's not apples to oranges.
It's apples to orangutans.
So what would you be comfortable with?
How many recess appointments if they don't get the votes that they need?
If it's not a blanket recess appointment, which you've made your opposition known to, what would you be okay with?
Well, there's no magic number.
It's a process.
When you look back to previous presidents, almost all have made nominations, tried to work through the Senate process, and then we've gotten frustrated and obstructed that then said, okay, I have no choice but to do this recess appointment.
Here, we have a majority in the Senate.
Any competent nominees to major positions ought to be confirmed very quickly.
And, you know, it's tempting to wonder whether this scheme that's being talked about is designed to enable the installment of less incompetent nominees.
We saw, for example, the nomination of Matt Gates to the Justice Department, a nomination that has now been withdrawn, but a terrible pick in so many ways, and not someone who should ever be installed via recess appointment.
Is there anybody else who you would describe as not a less than competent nominee or a terrible pick?
I'm not going to address the full range of nominations.
One great thing about the confirmation process is the nominees will have an opportunity to prove their competence.
And so, yeah, some questions have been raised about different candidates.
I'm not, I can't say I'm wild about RFK Jr., for example.
But let them go through the process.
If they shine, all the better for them.
They'll have even more influence in the administration.
If they bomb, well, that'll be very telling as well.
But again, you have 53 Republicans in the Senate.
There should be, there will be a good dose of deference to President Trump's picks.
Felix, Gaithersburg, Maryland, Democrat, good morning.
Good morning.
I don't really have a comment on the prompt, but I just wanted to make an overall comment on some observations from my working experience.
I did notice that sort of the framework that I'd use and approach things from an accounting background in the federal government is using a control framework, and that kind of starts with the tone at the top.
And unfortunately, or fortunately, that occurs at the presidency level.
So it's interesting to kind of see how these polarizing kind of picks, nominations throughout the upcoming second Trump presidency can kind of shift and control the tone surrounding the American public.
Ed Wayland, any thoughts?
Interesting comment.
I do think a president sets the tone and a lot follows from that.
Roy, West Palm Beach, Florida, Republican, go ahead.
Yeah, hello.
How are you doing?
Doing well.
Yeah, I'm calling for paying to what your guests are speaking about, about these recess appointments.
You know, if needed to be done, it is constitutional, correct?
It all depends what it is.
No, I do not believe that the president has constitutional authority to get the House to try to force a disagreement with the Senate so that he can adjourn both houses.
I've explained in writing why I think that is unconstitutional.
I think it's deeply anti-constitutional for the president to try to force a recess of the Senate for the very purpose of making recess appointments.
And I'll add further that the court was deeply divided in Noel Canning, five to four, on the scope of the president's recess appointment authority.
Now, my objections to the scheme assume that the majority is right in that case, but Justice Scalia had a very powerful dissent that he read from the bench, and he was joined by three justices who are still on the court.
And in that, pardon me if I said dissent, it was a concurrence in the judgment.
In that opinion, he said, A, the recess appointment authority can be exercised only during intersession recesses, recesses at the end of a session of the Senate before the next session.
So this would typically happen sometime, say in December.
And B, that this recess appointment authority can be used only with respect to vacancies that arise, that happen during the recess.
Not vacancies at the outset?
Not vacancies that pre-exist the recess.
I think there's a very good chance that if Donald Trump were to pursue this scheme, some months down the road, you would have a Supreme Court majority that would strike it down on any of several bases, including the possibility that the three new justices, Republican appointees, Trump's own appointees, would join with the Chief Justice, Justice Alito and Justice Thomas in adopting the two positions that Justice Scalia set forth in his concurrence in that case.
About 20 minutes left.
You bring up the Supreme Court, just to shift slightly to the Supreme Court.
What is your expectation or what is the expectation among folks who watch the court as much as you do as to how many picks for the Supreme Court Donald Trump might have in a second Trump administration?
Well, I would put the over-underline at around two.
But vacancies are often over-predicted, and I might end up making that mistake here.
I would think that there are some justices, I won't be coy, I'm speaking of Justice Thomas and Justice Alito, who might decide that this is a good opportunity to pass their seat along to someone who would entrench their legacy.
You have a Republican-controlled Senate.
It would be very easy to get high-quality nominations confirmed.
And you'd basically have the conservative majority rejuvenated.
Now, they'll make up their own minds.
So we'll see what they decide to do.
But it seems to me that there are strong arguments why they might decide just to step down sometime in the next one or two or four years.
If it were two and Donald Trump ends up appointing five justices over the course of two terms to the Supreme Court, where would that rank in terms of number of Supreme Court justice appointments by a single president?
He would, I believe, tie Dwight Eisenhower, who had five.
FDR had more than five, I believe.
He had enough time.
Yes.
Yes.
Washington obviously appointed them all at the beginning.
I'm forgetting another president.
It may have been Lincoln who appointed five or so.
So it's, you know, it's a significant number.
It's hardly unprecedented.
Do you think it's a good thing for the judicial branch to have one president appoint a majority of the sitting justices on the Supreme Court?
I'll say it all depends how good his appointments are.
How do you think his appointments have been?
Great so far.
What's an appellate judge?
Well, the federal judicial system is basically divided into three levels.
You have the Supreme Court at the top, you have federal district courts or trial courts at the bottom, and you have the federal courts of appeals in the middle.
So we have 12 geographically organized federal courts of appeals, as well as a specialized court that hears certain matters.
So when you hear about the Ninth Circuit or the D.C. Circuit or the Fourth Circuit, they're formerly known as, I said, the U.S. Court of Appeals for the Ninth Circuit, the U.S. Court of Appeals for the Fourth Circuit, et cetera.
These are the appellate courts.
How many are there and how many picks to the appellate courts does a president usually get?
Well, again, I believe there are 12 geographically organized courts of appeals, as well as the so-called federal circuit, which handles intellectual property and claims against the government, I believe.
Right now, it looks each one of those has about how many judges?
Oh, there's a wide variation.
It's not a standard number.
No, the Ninth Circuit, which covers a huge area, has 29, I believe.
The First Circuit has maybe five.
So there's quite a variation.
I would say the mean is probably in the 10 to 15 range, but don't hold me to that.
So right now, there are only five vacancies or announced vacancies among the 170 or so active judgeships on the Federal Courts of Appeals.
There might be some more vacancies that arise, far fewer vacancies right now than at the outset of Donald Trump's first term in 2017.
Basic reason for that is in Donald Trump's first term, Republicans controlled the Senate for the two years preceding his coming into office, and they obstructed lots of Barack Obama's nominees.
Of course, we have the opposite situation now where Senate Democrats control the Senate and have been pushing Joe Biden's nominees through very expeditiously.
In terms of what's considered the most important pick, obviously, a Supreme Court is the appellate court is the next most important pick.
Is that fair to say?
Sure.
I think so.
And from there, too, you might say that some courts seem more important than others.
You might look at courts where they're at an ideological tipping point, where the en banc decisions made by the full court might change if you had one or two more, say, conservative judges.
You have the D.C. Circuit, which has a very lopsided Democratic advantage, which I think will be difficult for anyone to alter, but is seen by many as particularly important because lots of big cases of administrative law end up in that court.
So look, it would help the odds to get a conservative panel if you had one or two appointees to that court.
I don't know that that's going to happen.
More calls for you.
This is Billy in Crockett, Texas.
Democrat, good morning.
Good morning.
I would just like to say that America is a nation of God.
And even though Donald Trump, I wasn't behind him, even though he won that nation, God had already told me that Cameron would win as well.
And what I'm saying about our nation is we are a nation of God, and that's why we're the world leader.
And that's why we get this area safer than anybody would come in here talking crazy and doing crazy things because God is real.
And I'm one of God's sons.
I'm in quite a bit of a crazy question.
Well, Billy, do you have a question about the judicial branch or recess appointments?
Well, I would just like to say that I'm for the things that will be better for the people.
And with America being the type of nation we are, we're not like some type of crooked place.
We are the people of our nation, they get a chance to speak and they get a chance to react.
Well, Billy, appreciate the call from Texas and letting you speak.
This is Mike in Poughkeepsie, New York.
Republican, good morning.
Hi, good morning.
It's first time calling.
I was looking online and I saw that there were he mentioned Clinton and George Bush and I saw there were 139 recess appointments under Clinton, 171 under Bush and 32 under Barack Obama, which seems low.
For the Barack Obama breakdown, they said that 20 were later appointed by the Senate and I think 12 were withdrawn.
So I'm wondering what's the difference between those figures, you know, those occurrences and what's being suggested now?
They said the ones for Barack Obama, that's the only one that data were all appointed or nominated before the recess appointments.
So I don't understand the hand-wringing going on that I'm hearing.
Maybe I'm taking that the wrong way, but just curious what your take is on that.
Well, let me repeat myself.
It's much more than hand-wringing.
It's an objection to a complete inversion of our constitutional system of the Senate's role in major nominations.
So again, recess appointments have their place.
And if Donald Trump ends up making 200 recess appointments during actual recesses for the sort of mid-level, low-level offices that previous presidents have done, fine.
What I am objecting to is the idea of forcing the Senate into recess in order to make recess appointments, something that Hamilton would have found abominable, something that Justice Scalia would have found abominable.
Recess appointments of top cabinet officials, the various sorts of folks who ought to be getting scrutiny by the Senate.
And all of this with a Senate with 53 Republicans.
And what a blunder this would be down the road to have these recess appointments challenged and invalidated and have six months of President Trump's term blown by this scheme.
If that were to happen, if they were invalidated, what does that mean for what would have happened in agencies over those six months?
Well, it all depends what the unlawfully recess appointed officials did.
But basically, you could have lots of folks who would have the authority to challenge the actions taken.
Let's say, for example, that an attorney general fires a Justice Department employee.
That employee challenges the firing, saying, among other things, you're not lawfully in office.
Well, so that person would presumably be reinstated or get some huge damages award.
But the point is that this would just be a huge mess at the outset.
It takes simple tackling and blocking to make a lot of progress here.
It's very easy to go through the ordinary channels.
I emphasize again that earlier presidents prior to November 2013 did not have the benefit of the abolition of the filibuster.
Huge, huge change.
Presidents prior to 1998 did not have the advantage of the Vacancies Reform Act, which gives a president another vehicle to put in place officials who will implement his vision, put them in place as acting officials.
Again, there was a change back in 2019 that means that post-closure debate for sub-cabinet officials is limited to two hours.
That makes it very easy to get lots of nominations confirmed.
So all these efforts on the confirmation side have happened to make it easier to get a nominee confirmed.
Has there ever been an effort to overhaul or make a constitutional change to get rid of the recess appointment, this whole idea that's caused this concern?
Well, I don't think it's recess appointment so much that's caused the concern.
What you have is, you know, admittedly, an awful lot of federal government officials who are subject to advice and consent by the Senate.
I think the number may be somewhere near 1,200.
So there's a legitimate question about how you go about enabling those positions to be filled.
And I think some of the changes that have occurred have, by design or not, made it a lot easier to do that.
Again, on recess appointments, the question is whether the position that Justice Scalia expressed in dissent, I'm sorry, in his concurrence in the judgment in LRB v. Noel Canning would at some point be adopted.
But whether or not it is.
But there hasn't been a proposal to overhaul the Constitution and get rid of recess appointments.
Is it because it just hasn't been as big of an issue as it could potentially be this time around?
Well, I think it's because the Senate has plenty of tools available to prevent recess appointments.
We talked before about pro forma sessions.
So you don't need a constitutional amendment to limit recess appointments.
Just one senator coming in and calling the Senate into session.
Right.
To Dennis in West Palm Beach, Florida, Independent.
Good morning.
Good morning.
A question for Mr. Whalen.
With the caveat of not wanting to jinx anybody, what are some of the names that President Trump should consider for possible Supreme Court openings?
Thank you.
Well, I don't think that I'm particularly in good favor with the future White House folks at this point.
So I will not name any names.
I will say that Donald Trump appointed 54 Courts of Appeals judges in his first term, an excellent group of judges, really outstanding on President Trump's part.
And some 30 or so of those appellate appointees are in the age range to be plausible candidates for a Supreme Court nomination.
And a good 12 to 15, I think, would be hailed as really outstanding candidates.
You can look around different courts of appeals and find different candidates.
So it would be easy pickings for President Trump to select one of the outstanding individuals he has already had the good judgment to appoint to the Courts of Appeals.
Why don't you think you're in good favor with the incoming Trump administration?
Just this issue?
Well, among other things, I have not been, you know, it's fair to say that I have had my reservations about our president-elect.
Do you care to elaborate?
Well, only that I would have preferred a different candidate in the primary.
That said, I very much wanted him to succeed.
And I'm trying to do what I can to help him succeed on judges and on other matters.
And that includes beating down bad ideas that other people are trying to push on him.
Mary Grace in Florida, Line for Democrats.
Good morning.
Good morning.
Thank you for taking my call.
And thank you, Mr. Whalen, for explaining the recess appointments and other things because the public does need to be educated.
Although I'm a Democrat, I feel that you are doing things fairly for all people.
And I am extremely worried that the Supreme Court, there are six Republicans and only three Democrats.
And nothing is getting done because of the fact of their etiology on the other side, Republicans, and women are paying a price for it.
Is there anything in the Constitution that can settle this matter so it can be equal and fair to all people?
And I also feel that politicians on both sides are not listening to their constituents.
They just want to be in power.
So I would deeply appreciate what your thoughts are.
And thank you for your work.
And Mary Grace, just have you explain a little bit, what do you want to be equal and fair?
Are you talking about Supreme Court membership?
Yes.
I mean, it's unfair.
The women now, they defeated Roe versus Wade, and now women are dying because they can't get an abortion.
The last case in Texas where the woman had a miscarriage, and she couldn't have a DNC because the doctors are afraid because of the way the law is written.
And that's because the Supreme Court is unequally divided.
Gotcha.
And how, yes.
Got your point, Mary Grace.
Let me let Ed Whalen jump in.
Well, that's a big question on which I have a lot to say.