(The Senate is fucked if they think they can block by PDJT's nominees to his cabinet. Constitution says so.)

Brief: On the Article II Recess Appointments Clause. 1/3

November 17, 2024

by Jeff Clark, Anthony Licata

The appointment power is vested in the President under the regime erected by Article II of the Constitution. Two clauses, in particular, grant this power: the Appointments Clause and the Recess Appointments Clause.

Given the extensive delays experienced during his first administrationin getting the Senate to approve his nominees expeditiously, President-elect Donald Trump recently proposed the use of recess appointments, if necessary, to briskly stand up his new administration early next year. The question is whether the law and our history confirms the President’s belief that he should be allowed to assemble his Cabinet quickly via recess appointments?The answer is “yes.”

Article II Power of Appointment

James Madison proclaimed on the floor of the First Congress that“if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.”1“Good laws are of no effect without a good Executive; and there can be no good Executive without a responsible appointment of officers to execute.”2

The President retains unfettered discretionto select every Officer to be considered by the Senate for confirmation, whereasthe Senate’s advice-and-consent authority is confined to mere binary approbation (i.e., aye or nay)of the President’s nominees. 3From that perspective, it is unsurprising thatthe practiceof Senate committee referrals and thesummoningof presidential nominees forlengthy hearings and invasive inquisitions are modern conventionscompletely foreign to the Constitution’s Framersand were not how the confirmation process, often using voice votes, was operated for most of the country’s history.4

The appointment power is vested in the Presidentunder the regime erected byArticle IIof the Constitution.Two clauses, in particular, grant this power: the Appointments Clause and the Recess Appointments Clause. These clauses exist to ensure the efficient appointment and near-perpetual commission of subordinate executive officers under the direct charge of the President, so that gaps in offices led by presidential appointees do not exist for lengthy periods of time.

The Appointments Clausegrants to the Senate an advice-and-consent qualification on the appointment of executive officers and, in conjunction with the House, the authority to statutorily create such offices in the first instance,5yet the “entire ‘executive Power’” to appoint, remove, supervise, command and control each and every one of these executive officers and offices“belongs to the President alone”under Article II.6 As Chief Justice Taft observed, the “ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power,” which necessarily includes the power of “appointment and removal of executive officers” and of “supervis[ing] and guid[ing] their construction of statutes under which they act.”7

Whereas underthe Appointments Clause, the “power of appointment is confided to the President and Senatejointly” (in view of the Senate having the power under that clause to withhold consent), the Recess Appointments Clause“authorise[s] the President, singly, to make temporary appointments” to vacant Offices, which may be “necessary for the public service to fill without delay.”8 The Framers additionally saw to it that, notwithstanding the senatorial advice-and-consent qualification on appointments,9 the President “shall have Power to fill up all Vacancies [in Offices] that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”10 As President Monroe’s Attorney General, William Wirt, propounded in his cornerstone opinion interpreting the ___Recess Appointments Clause__: “The substantial purpose of the [C]onstitution was to keep these offices filled==; and powers adequate to this purpose were intended to be conveyed.”11

https://americarenewing.com/issues/brief-on-the-article-ii-recess-appointments-clause/