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Dec. 2, 2024 - Epoch Times
22:56
The Power and Limits of Recess Appointments: Jeff Clark
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For a lot of the history of the Republic, the nominees of the president both to serve in the executive branch and the nominees of the president to serve in the judicial branch sailed through relatively quickly.
It's a lot of red tape that's been added.
Like, my confirmation took 14 months.
It's like night and day from the process that drafters of the Constitution intended.
As part of our special series on the U.S. presidential transition period, I'm sitting down with Jeff Clark, Assistant Attorney General at the Justice Department during the previous Trump administration and now Senior Fellow and Director of Litigation at the Center for Renewing America.
What are recess appointments?
Why is Trump so interested in them?
Are there legal or historical precedents for them?
And how could they impact the effectiveness of this coming administration?
This is American Thought Leaders, and I'm Jan Jekielek.
Jeff Clark, such a pleasure to have you on American Thought Leaders.
Thank you, Jan.
It's good to be here.
I enjoy your show.
Well, thank you.
So, President Trump has indicated that he wants to use recess appointments to put people into his cabinet and into other positions.
So, can you explain to me what this is all about and why he might be talking about that so prominently?
Sure, and I think that's the right characterization.
I think he's thinking about using the recess appointment power and then how that relates to another power I can describe in terms of how Congress takes recesses in the first place.
And it's a power that's been used many times before.
There are a lot of very important legal questions bound up in using that power.
And there's a lot of pushback on that, but also it has a political dimension to it.
And so the Recess Appointments Clause is the source of the power that we're talking about.
And so it's in Article 2, Section 2, Clause 3 of the Constitution, and it gives the power, when Congress is in recess, For the President to appoint someone without any kind of Senate confirmation process.
It's just the President solely taps someone on the shoulder and says, I would like for you to serve this office in my government.
It can be in any department, any agency.
And then that person can begin to serve once they receive a piece of paper called a commission.
And normally, the appointments clause, the base appointments clause, is in Article 2, Section 2, Clause 2, and it says that the president can appoint someone and then they go into office if the Senate confirms them.
And so that's a joint process with the Senate.
So the one power is one where it's a cooperative power, essentially, with the Senate, although the president's in the predominant role of picking the person.
The Senate doesn't get to pick someone.
They just get to do thumbs up, thumbs down.
And then the Recess Appointment Clause involves only an exercise of presidential power.
So those are the two powers.
And the dispute is coming up because the senators are very interested, many of them anyway, especially the Democrat Party senators, in preserving their power.
To give their vote on whether a particular nominee of President Trump should get the thumbs up or thumbs down.
So if the president shifts to using recess appointment clause powers more frequently, they don't get that attempt to try to influence the process.
Why do you think that President Trump is talking about this prominently at this moment?
I think because he is seeing that the confirmation process as it has evolved over time, especially if you look back at the early republic, has really bogged down.
And it's become an opportunity for political gotchas.
It's become an opportunity to slow the process down.
Therefore, it's become a process to resist President Trump.
He can't get his team fully in place until, especially since we're talking about, you know, more than a thousand positions, you know, it's a big bottleneck to go through the Senate on each of those, right?
And this is not the system that the framers really designed, so let me put that in historical context for you.
So when President Washington was putting together his first cabinet, And I've looked at the Senate rules at the time, right?
These rules were very simple and they resulted in a very simple confirmation process.
How would it work?
The President was actually given the power to go to the Senate and observe the proceedings and maybe even preside over them if he wanted to.
And if he didn't preside, then it was the Vice President in his capacity as the President of the Senate who would preside.
And the nominations might go over early in the day, like in the morning, and then before the day was over, the Senate would vote on whether to confirm that nominee or not, and they often did it by voice vote, right?
So, you know, that very efficiently and quickly gets President Washington's team in place in order to administer the federal government.
And obviously that was a smaller federal government, right?
So if the process was really intended to be more extensive, it should have been more extensive at a time when there were, you know, far fewer government departments and fewer positions.
So as one example, right, one of the initial members of the president's cabinet was his attorney general, and there was no such thing as the Justice Department.
It was not created until circa 1870. I don't think a lot of people know that.
So even, you know, you would think, right, you would have the luxury to go on maybe for several days, a week, multiple weeks, to have the Senate review the nominees, but they didn't see the process that way.
That wasn't how it was intended by the framers.
So for a lot of the history of the Republic, The nominees of the president, both to serve in the executive branch and the nominees of the president to serve in the judicial branch, in the Article III Judiciary for lifetime appointments, these things sailed through relatively quickly and the check I think it was a modest one on presidential power because the Federalist Papers tell us that the President is really the main driver of this
and especially if we're talking about people in his own branch, executive branch officials.
You know, that's something that to have it, you know, get to what we're seeing nowadays in the modern era, where, you know, you have to fill out a very long questionnaire, and I can tell you it takes a long time to prepare this paperwork.
The paperwork goes over, then, you know, they have to schedule a confirmation hearing, and then you prepare for it, you go to it, you get questioned by each of the members, and then they ask you after that questions for the record, or what people call QFIRs, That takes a while to prepare the follow-up questions from the hearing.
Then they have to schedule a business committee meeting on you, and they take a vote from the committee, and then they either report you out favorably or unfavorably, and then you get a cloture vote in the Senate, and then you get an actual vote on the floor of the Senate.
I mean, this is a very involved process.
It's like night and day from the process that George Washington encountered, and I think the drafters of the Constitution intended.
So it's a lot of red tape that's been added, and it's a lot of opportunities to just, you know, drag the process down and make it so that there are very many qualified people, you know, excellent people who, you know, if the process were more streamlined, might want to serve, but they don't have to want to go through their whole life history.
And if they're tapped on the shoulder and ask, well, will we take an appointment?
You know, they'll say, you know, no thanks, right?
I don't want to be drug through the newspapers.
I don't want to be...
You know, subjected to twisting in the wind potentially for months.
Like, my confirmation took 14 months from the time that the papers went over to the Senate to the time that I actually started to serve.
So, you know, the recess appointments clause power, it exists in the Constitution.
Hundreds of federal officials in the past have been confirmed using it from presidents of all parties.
And it's clearly a power that exists in the Constitution, and it's one that can streamline a lot of this process.
So that's the President's interest in it.
He's a businessman.
He's an efficiency expert.
Well, so how would you react to someone saying, well, you know, when the Republic was young, there was a lot that wasn't yet known about what would happen, and indeed, you know, that some of these More advanced procedures were developed in order to be able to protect the American people from bad appointments, because presumably that would be the argument, right?
And so we should follow that process.
So, Jan, I would push back on that, having looked at the history.
President Washington's initial cabinet includes people like Thomas Jefferson, right?
And so there were excellent choices made.
The reason why the process evolved was not to try to create more excellent appointees.
And in fact, for the reason I gave you in terms of discouraging the service of people who would otherwise be willing to serve because the process has become such filled with red tape, I think it's actually the opposite that's true.
I think the process has been pioneered in order to try to stir up political forces.
And one of the first big modern confirmation messes, and it led to a book actually by a Harvard law professor called The Confirmation Mess, is with Judge Bork.
So let me describe Judge Bork's career to you.
So Judge Bork is an eminent law professor and he's nominated by President Reagan for an opening on the Supreme Court and the Democrats decided that they were just going to try to bring him down by any means.
And ultimately they did stop his nomination, and it's turned into a verb, Jan.
The verb is borked.
So Judge Bork or anyone that, especially a conservative president, nominates to a court or even sometimes an executive branch official, if they're subjected to the kind of ill treatment that was shown to Judge Bork, It's called borking.
And the constitutional framers did not imagine borking.
They did not want borking.
They wanted deference to the president's choices.
And if there's someone who you find that they took bribes, or you find that they lack any qualifications for office, Or, you know, they've been involved in just, you know, kind of like a mind run of scandals or something.
This is what the founders thought would be their check.
Otherwise, even if they wouldn't have picked someone for a particular cabinet spot or other spot, If they want that power, they have to run for the presidency and win it.
Otherwise, they should be deferring to who he wants to put in as his team.
That's the system they put in place.
They did not put the Borking system in place.
And the Democrats used the Borking system not only to block Judge Bork, An eminent constitutional scholar from the Supreme Court, they tried the same tactics with a sexual harassment angle against Clarence Thomas.
It failed, but they tried it and it became a national spectacle.
They tried it against Justice Kavanaugh to try to keep him off the Supreme Court.
That failed as well with these allegations of Christine Blasey Ford.
And these, again, the process is not designed for this.
It's become the kind of thing that also, I think, puts the United States in a bad light.
It makes these confirmation hearings into laughingstocks all around the world.
Our framers did not foresee that system, did not want that system, and in the separation of powers' fights between the branches, if one branch acquires too much power, or they're potentially abusing their power, it becomes incumbent on the other branches to push them back.
And I think here one thing that's attractive to those of us who think that it's time for the president to push back on abuses of the confirmation process is the use of the Recess Appointment Clause power.
Jeff, we're going to take a quick break and we'll be right back.
And we're back with former Assistant Attorney General Jeff Clark.
So you wrote a brief on this with Anthony Licata.
Indeed, this is what caught my attention because I was very curious about this recess appointments approach and then you had it, you know, you laid out for me answers to a whole bunch of questions that I had.
So why was it necessary to write a brief?
I mean, so far what you're explaining to me sounds fairly simple.
Well, I think it's because there's a lot of pushback, both from liberal constitutional scholars and even from, I'll call them mine-run, conservative scholars or conservative think tankers.
Who don't want the President to try to put the confirmation process back into its original box, into its original historical moorings.
They think that these constitutional long confirmation process hearings with You know, documents coming in before and televised hearings and documents coming in afterwards and then debates that are also televised.
I've gone to look at, you know, what happened inside the business committee meeting about me, for instance, and then, you know, any floor debate about it.
All these things, they seem to like that process.
In part, I think they like that process because they think that they'd like to use it when they're out of power, right?
And that Democrat nominees for executive branch offices can be put on the spot.
I think that my perspective on it, with young Tony, who is a rising legal superstar and a very smart guy, very studied and learned in the law, Why
don't you give me a picture of what you're arguing?
Sure.
So, the President has the power, if the Senate is in recess, to simply tap someone on the shoulder and decide that they will serve in Office X. Could be the Secretary of Agriculture.
Could be the Ambassador to NATO. And then, you know, without a lot of to-do, that person can begin serving.
There is a time limit on such appointments, which is that they can serve until the next session.
And how long that period is depends on what kind of recess is at issue.
And there are two kinds of recess.
One kind of recess is an inter-session recess, and the other kind is an intra-session recess.
So, Congress has two sessions in each Congress.
They each last a year.
So, the break between either the prior Congress and the first year of the new Congress, there's an intersession recess there.
And then between the first year and the second year, there can be an inter-session recess.
But if you were to recess appoint someone during a recess, like, you know, say in February, after the session for the New Year's already started, That's an intra-session recess.
If someone is appointed to an inter-session recess, they serve about a year because the next session is just about to start, and so that's the next session, and then you can only serve until the end of that.
If you appoint someone, you know, in the first year of a Congress, then they can serve until the next session, which is the second year, which means that the intra-session recesses can go on for longer.
So there's a famous Supreme Court case about this.
It was decided a decade ago.
It's called Noel Canning.
It's NLRB versus Noel Canning.
And in that case, President Obama was frustrated by the fact that The National Labor Relations Board didn't have a quorum.
And so he put three people on that board so that it would have a quorum and it could start producing decisions.
And that agency proceeds by doing adjudications, like each thing it does is its own individual case.
And so they produced some decisions that were, you know, adverse to this company, Noel Canning, in the labor law area.
And Noel Canning challenged it because President Obama had made those recess appointments during an intra-session recess.
And the intrasession recess was very short.
It was only three days.
And let me explain why the recess is very short.
In order to stop recesses, you know, which give the president this opportunity to recess a point, the Senate had taken to doing pro forma Sessions.
So they would actually not be conducting any business, but they would gavel themselves in and say, well, we're doing a session.
And then they'd kind of quickly gavel the session out.
And then on the fiction that the session was really continuing, but it wasn't.
So President Obama took the position that he could recess a point even during a recess as short as three days.
So that issue ultimately gets up to the Supreme Court.
What does the Supreme Court say?
Unanimously, it affirms a judgment that invalidated the decisions of the National Labor Relations Board with these three Obama appointees on it.
And what was the rationale?
So there was a majority opinion, and then there was a concurring opinion.
The majority opinion written by Justice Breyer, who's now not on the court anymore.
The concurring opinion that was written by Justice Scalia, who now, sadly, is no longer with us.
Justice Breyer said that there is the power to do in-trust session recess appointments, because there was an argument that the president lacked that power.
However, the court said that a recess of three days is not long enough for the president to exercise this power.
In order for the president to be surely able to exercise the power, it has to last for at least ten days, this recess.
The concurring opinion said that there shouldn't be intrasession recess appointments.
There should only be intersession recess appointments.
And since these appointments by President Obama were intrasession recess appointments, they were inherently invalid.
So all nine of them agreed that the NLRB actions here could be invalidated because they had three suspect appointees on it, but their rationales were very different.
And so that's the world in which we find ourselves.
And so I don't think the Supreme Court is going to revisit that case.
I think they're going to treat that as what we call stare decisis, that it's already been, it's firmly established.
The rules are clear.
And so if President Trump finds himself in a situation where the Senate takes a 10-day or longer recess, then he can exercise this power of recess appointment.
Now, call that the basic situation of the Senate agrees to put itself into recess.
But what happens if the Senate does not want to go into recess, but the House does?
In that case, there's another provision of the Constitution.
It's the Presidential Adjournment Clause.
Sorry to be so technical, but that's what these things hinge on.
And it says that if the houses disagree about the time of adjournment, then the president has the power to send them into recess for as long as he sees fit.
And that power is one that has a check at the back end, which is that there's another constitutional provision that says the Congress has to meet at least once a year.
So this is not the power.
The president would not be, if he used this presidential adjournment clause, he would not be claiming the power to sort of dismiss Congress.
He could just put them into a recess, and there's a constitutional backstop for that.
Now, for your viewers to understand, this Presidential Adjournment Clause power has never been used.
However, it is plainly in the Constitution.
It is plainly a power that the President possesses.
And I think, we think, my co-author and I, and the Center for Annuing America more generally, and our colleagues there, We think that it's come time for the president to push back on this misshapen, distorted confirmation process that's evolved out of recognition.
You can't be recognized anymore versus what the framers intended.
it's time in the separation of powers hurly-burly for the president to use this power to push back so we can get back to something much more like the original confirmation process that was a lot shorter and a lot more reasonable.
Well, Jeff Clark, it's such a pleasure to have had you on.
Thank you.
Thank you all for joining Jeff Clark and me on this episode of American Thought Leaders.
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