A portrait of Alexander Hamilton
A WALK THROUGH THE APPOINTMENTS CLAUSE AND THE COMING STORM
The election of Donald Trump to the Presidency will see a reformulation of government as we know it. The changes will reinvigorate the economy and attack the enormous waste in the federal government as well as its unending expansion. This not only chills growth and innovation but intrudes upon the federalist form of our Republic by complicating the state’s ability to chart direction and create policy in the interests of its own citizens. Make no mistake, however, this is a Republic that has as its foundation the separation of powers vested in separate but equal branches of government. One does not have to be a constitutional scholar to see this through the lens of the grievances that led not only to the Declaration of Independence but to the Constitution itself. The corruption of the unfettered ability of the Crown to appoint officials was seen as one of the characteristics of despotism that was addressed by Framers throughout the constitutional debates and ultimately, the document itself as a design for governance. Trump will defend his appointments, particularly Matt Gaetz, for the position of Attorney General, by citing the overreach of the Garland DOJ in baseless and politically motivated lawfare, including the FBI’s targeting of political enemies of the Administration without regard to due process. The arguments are strong, but the call for the best and brightest who can still reform these departments is what the confirmation process is all about. Some history is in order.
The Supreme Court in Freytag v. Commissioner of the Revenue, 501 U.S. 868 (1991) noted:
“The “manipulation of official appointments” had long been one of the American revolutionary generation’s greatest grievances against executive power, see G. Wood, The Creation of The American Republic 1776—1787, p. 79 (1969) (Wood), because “the power of appointment to offices” was deemed “the most insidious and powerful weapon of eighteenth-century despotism.” Id., at 143. Those who framed our Constitution addressed these concerns by carefully husbanding the appointment power to limit its diffusion.”
The Appointments Clause states as follows with respect to presidential powers:
Article II, Section 2, Clause 2:
“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
The appointment of principal officers of the United States consists of three steps. First, the President nominates an individual to an office; second, the Senate decides whether to confirm that person to the office; and third, the President commissions the officer to the post. This is the constitutional path.
The genesis of this design is the following from Alexander Hamilton, a champion of the robust and “unitary executive,” but with an understanding that unchecked appointment authority would be more of the same. By combining political accountability in the President through his selections with the input of the deliberative body of the Senate, there is a check on the potential for unqualified persons to be appointed. Matt Gaetz as Attorney General is a controversial choice that has led to bipartisan criticism in the Senate, and the same goes for Pete Hegseth (Defense Secretary) and Robert F. Kennedy Jr. (Health and Human Services Director). These are the bold choices that a president may make to forge his vision of the Executive Branch he leads, but such choices necessarily invoke the controls put in place at the Constitutional Convention. Hamilton argues as follows:
Federalist No. 76
The Appointing Power of the Executive
THE President is “to NOMINATE, and, by and with the advice and 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 whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up ALL VACANCIES which may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE at the end of their next session.”
Hamilton reasons further:
“But might not his nomination be overruled?” I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel for another, to reject the one proposed; because they could not assure themselves that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain that a future nomination would present a candidate in any degree more acceptable to them, and as their dissent might cast a kind of stigma upon the individual rejected and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.
To what purpose then require the cooperation of the Senate? I answer that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity.”
WHAT OF THE MUCH-DISCUSSED RECESS APPOINTMENTS?
The newly appointed Senate Majority Leader John Thune of South Dakota has signaled that the framework of the Appointments Clause will be the order of the day. President Trump, never one to shy away from controversy, has given notice that he intends to make recess appointments given the start of the 119th Congress. The process for recess appointments is as follows:
Article II, Section 2, Clause 3:
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
The Recess Appointments Clause, authorizing the President to make temporary appointments when the Senate is not in session, was adopted by the Constitutional Convention without dissent and without debate regarding the intent and scope of its terms. In Federalist No. 67, Alexander Hamilton refers to the recess appointment power as nothing more than a supplement for the purpose of establishing an auxiliary method of appointment in cases to which the general method was inadequate. It is generally accepted that the Clause was designed to enable the President to ensure the unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. In addition to fostering administrative continuity, presidents have exercised authority under the Recess Appointments Clause for political purposes, appointing officials who might have difficulty securing Senate confirmation. The foregoing paragraph is from the “Constitution Annotated” website, subtitled “An Analysis of the U.S. Constitution.”
Can President Trump simply make these appointments during a Senate “recess?” Maybe. The Supreme Court ruled on this issue when President Obama appointed members to the National Labor Relations Board during his second term. In NLRB v. Noel Canning, the Supreme Court held these appointments to be unconstitutional because the Senate had not been in “recess” as contemplated by the Clause. Any “recess” of less than 10 days will not authorize such appointment, and this applies to both intra-session and inter-session recesses. The Court held that the Senate is in session when it says it is, and if it has the ability to procedurally conduct business, no such recess appointments can be made. The 119th Congress convenes on January 3rd, 2025, with the first order of business being the Electoral College vote count and the formalization of the election of President Trump. What happens next is up to the Senate majority and its leader and the procedural pushback of the vanquished Schumer and company.
CONCLUSION
The structure of our Republic does not change even if an elected president has the overwhelming mandate that Donald Trump as president-elect has earned through as vigorous a vetting process as any presidential candidate in history. He has been fraudulently indicted, yet forged on by using our legal system and its appellate due process. The people acquitted him. He has been the target of political fraud, and he has been shot in a yet unexplained and suspicious assassination attempt. One of two. He certainly is entitled to his Cabinet, yet the questions remain, and at no time should Senator Thune abdicate the vital role of the Senate in this process. In 1788, Alexander Hamilton understood the politics of such appointments and the checks that need to be in place to ensure that qualified people occupy positions of critical importance in our Republic. His logic and the reasoning of the remaining Framers has not faded with time. “Advise and Consent” is not a rubber stamp.
Mike Imprevento
November 2024
