Donald Trump, our once and future President, wants the Senate to recess for a few days at the beginning of his next term so he can make cabinet-level appointments without the Senate’s approval. The Senate must refuse to do so and instead insist on playing its constitutionally-mandated role to review, accept, or reject presidential appointments. Too many of Trump’s prospective appointees inspire too many questions which, for the sake of the country, and for their own sake as well, require examination and review by the United States Senate before they can be allowed to take office.
The Constitution of the United States grants to the President the power to appoint judges and major executive officials—with the advice and consent of the United States Senate. In other words, the President under the Constitution does not have an absolute right to appoint anyone he wants to the government. The Senate has the right to review and, if it so chooses, reject his appointments. Founding Father Alexander Hamilton said this was necessary to provide “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.”
But the Constitution also allows the President to make “recess appointments,” or emergency appointments to office when the Senate was not in secession. But while these appointments would not require Senate approval, the appointed officials’ terms would automatically end when Congress finally adjourned to make way for a new Congress. Thus if a newly-inaugurated President Trump next January were to induce the Senate to recess for a few days and then make recess appointments, his appointees could serve until January 3, 2027, when the Congress elected in 2026 begins work.
According to an analysis by the Wall Street Journal based on work by the Congressional Research Service, a provision for recess appointments made perfect sense in 18th and early 19th century America, when the Congress met on average less than six months each year, and senators and representatives had no means of traveling from homes to Washington except by horseback. Then the President had to be able to make appointments despite the absence of the Senate to confirm them.
And today there remains at least once circumstance justifying a recess appointment: If Senate procedures are used to block consideration of a needed appointee the President should be able to circumvent its unfair obstruction and put the appointee into office anyway. For example, President George W. Bush used a recess appointment to make John Bolton his ambassador to the United Nations after Senate Democrats filibustered his appointment, despite the fact that a majority of Senators would have voted to confirm him, if allowed.
But President-elect Trump seems to want to use recess appointments to install his nominees for office for fear that some may be rejected by the Senate, even though the Senate will have a Republican majority come January. And given the identity of some of Trump’s current and planned appointees, his fears may be justified.
Some of Trump’s cabinet appointees seem solid. Marco Rubio, Trump’s choice for Secretary of State, for example, is himself an experienced United States Senator with foreign policy experience earned as a member of the Senate Foreign Relations Committee. North Dakota’s Governor Doug Burgum, a former energy company executive and Trump’s choice for Secretary of the Interior, has both public and private sector executive experience dealing with the issues he will have to confront at the Interior. Both Rubio and Burgum are likely to win easy Senate confirmation.
But what about Trump’s choices of Pete Hegseth to head the Defense Department, or Tulsi Gabbard to be the Director of National Intelligence, or Matt Gaetz to become Attorney General? Each is generating fierce opposition from the agencies Trump wants them to head, as well as from many others in the political system. No doubt the controversies these nominations have inspired are why Trump wants to install them in office without risk of Senate rejection. But it is precisely because of these controversies that the Senate is needed to examine their respective cases and either accept or reject them on the basis of its findings. Questions the various Senate committees must ask and answer include, but are not limited to:
- Granted that Hegseth is a decorated combat veteran, is his experience in the military enough to make him a competent Defense Secretary, or does the position require more administrative experience as well? And what about Hegseth’s fierce opposition to DEI initiatives in the military, or to women in combat? And are the conveniently timed charges of sexual misconduct adequately proven, and do they disqualify him in an era when the shenanigans of Clinton and Trump have been widely discounted?
- Does Tulsi Gabbard’s experience as a city council member, state representative, U. S. Representative, and long-serving officer in the Hawaii National Guard offer any preparation to head America’s combined intelligence agencies, given her lack of direct experience in intelligence collecting and analysis? How, if at all, would Gabbard’s apparent admiration for Russia’s President Putin and Syria’s President Assad compromise her role as head of American intelligence? And assuming her religion is anyone’s business other than her own, how would Gabbard’s status as a practicing Hindu with links to an obscure cult affect her work?
- How valid are the charges of sex- and drug-related misconduct against Matt Gaetz? And how dedicated would Gaetz be to the ideal of an effective but nonpartisan Justice Department, as opposed to a department weaponized to wreak revenge on Trump’s political opponents?
Fairness to Hegseth, Gabbard, and Gaetz requires acknowledgment that most of
these questions come from the very departments which they’ve been appointed to head. Bureaucratic agencies don’t like to be run by outsiders and will no doubt do their best to resist efforts of Trump’s nominees to “rein them in.”
Nonetheless, the questions raised are serious enough to justify a Senate investigation. That will actually be fair to Trump’s appointees too. They are entitled to the right to defend themselves against possibly scurrilous allegations and to win vindication if they can. And that could happen. Systematic Senate scrutiny could reveal many accusations to be unfair and untrue, as happened in the hearings on Brett Kavanaugh’s appointment to the Supreme Court. Kavanaugh was accused of committing at least a dozen actual rapes. But when the Senate Judiciary Committee indicated its determination to examine the allegations those who had explicitly accused Kavanaugh of rape promptly admitted in most cases that they may have misidentified him (one accuser admitted she had lied, while others who accused him of other forms of sexual misconduct have never retracted their accusations, while they have also never been able to provide corroborating evidence either).
So Trump should have widespread latitude to appoint whomever he wants to office—but subject to Senate advice and consent. As Hamilton noted, Senate action is the best guarantor against bad appointments. Justice and, when warranted, vindication for Trump’s appointees, and the welfare of the public whom they will be serving, if confirmed, demand no less.
Hamilton in Federalist No. 76 writes that this provides “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.”
Malcolm L. Cross has lived in Stephenville since 1987 and taught politics and government at Tarleton for 36 years, retiring in 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990-2024). He was Mayor pro-tem of Stephenville from 2008 to 2014. He has served on the Board of Directors of the Stephenville
Economic Development Authority since 2018 and as chair of the Erath County Appraisal District’s Appraisal Review Board since 2015. He is also a member of the Stephenville Rotary Club, the Board of Vestry of St. Luke’s Episcopal Church, and the Executive Committee of the Boy Scouts’ Pecan Valley District. Views expressed in this column are his and do not reflect those of The Flash as a whole.
Be the first to comment