Sen. John Thune (R-SD)
By: Jennifer Shutt
WASHINGTON (South Dakota Searchlight) — President-elect Donald Trump is making demands of the next Senate Republican leader ahead of a closed-door election this week, writing on social media that whoever is chosen should recess the chamber early next year so he can appoint whoever he wants without having to go through the confirmation process.
“Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner,” Trump wrote. “Sometimes the votes can take two years, or more. This is what they did four years ago, and we cannot let it happen again.”
If the Senate were to recess for an extended period after Inauguration Day on Jan. 20, it would ensure Trump could freely make appointments to top-ranking positions in government, including the secretary of Defense and Treasury secretary, without needing the support of centrist GOP lawmakers. Senate Republicans are on track for a majority of 53 seats, with one race, in Arizona, still undecided.
Texas Sen. John Cornyn, Florida Sen. Rick Scott and South Dakota Sen. John Thune — who are competing for the majority leader post — all quickly got in line with social media posts of their own about what are called recess appointments.
“It is unacceptable for Senate Ds to blockade President @realDonaldTrump’s cabinet appointments,” Cornyn wrote on social media. “If they do, we will stay in session, including weekends, until they relent. Additionally, the Constitution expressly confers the power on the President to make recess appointments.
“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.”
Thune wrote: “We must act quickly and decisively to get the president’s nominees in place as soon as possible, & all options are on the table to make that happen, including recess appointments. We cannot let Schumer and Senate Dems block the will of the American people.” Chuck Schumer, a New York Democrat, is the Senate majority leader.
Scott commented on Trump’s original post, saying that he agreed “100%”
“I will do whatever it takes to get your nominations through as quickly as possible,” Scott said.
Skipping over the Senate’s advice and consent power would likely mean no committee hearings for nominees named through recess appointments, preventing them from having to answer lawmakers’ questions about their experience and policy goals.
It would also prevent senators from having to take what might be difficult floor votes on possibly controversial Trump nominees.
Trump has just started to announce who he’s selecting for posts in his next administration, naming a “border czar,” ambassador to the United Nations and EPA administrator as of Monday afternoon.
Supreme Court ruling
The Senate has avoided recessing for more than three days in the middle of a session for years, under both Republican and Democratic majorities.
Instead, when the Senate leaves Capitol Hill for weeks at a time, the chamber holds what’s known as a pro forma session every three days to prevent recess appointments. Those usually last just a few minutes and don’t typically include any legislative business.
The pro forma sessions, in part, stem from a unanimous Supreme Court ruling in June 2014 that held a president could fill vacancies during a congressional recess if it lasted more than 10 days.
“In light of historical practice, a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause,” the justices wrote in National Labor Relations Board v. Noel Canning.
That case began after then-President Barack Obama made three appointments to the National Labor Relations Board in 2012, even though the Democratic-controlled Senate was holding pro forma sessions every few days.
Opposition to Obama recess appointments
Republicans in Congress, including Thune and Cornyn, praised the Supreme Court’s decision at the time, sharply criticizing Obama for having tried to get around the Senate.
Thune released a written statement, saying the Supreme Court had blocked Obama from attempting “to violate the separation of powers.”
“When the president couldn’t get his appointments through the Senate, he decided to ignore the law and attempt an end run around Congress,” Thune wrote. “I am pleased that the Supreme Court unanimously rejected the president’s attempt to circumvent the Constitution. Today’s decision reaffirms the fact that Congress, not the president, has the authority to determine its own rules.”
Cornyn criticized Obama for making “unilateral actions” that gave “the perception he doesn’t care what Congress says.”
“As a matter of fact, this morning the Supreme Court rebuked the President on an illegal recess appointment — unconstitutional recess appointment,” Cornyn said during a floor speech, according to the Congressional Record.
Scott was not a member of Congress when the Supreme Court issued its ruling.
Iowa Republican Sen. Chuck Grassley at the time praised “the Supreme Court’s decision to strike down President Obama’s illegal recess appointments.”
“Article II, section 2 of the Constitution provides for only two ways in which Presidents may appoint certain officers: First, it provides that the President nominates and, by and with the advice of the Senate, appoints various officers,” Grassley said. “Second, it permits the President to make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess.”
During Trump’s first term in office, Senate Republicans held pro forma sessions as a way to avoid recess appointments and ensure the chamber had the time to vet the people Trump wanted to run some of the most powerful institutions in the country, including the Defense Department.
Any recess appointments Trump might make in the future would expire at the end of the Senate’s “next session,” meaning he would need to go through the process all over again within two years, according to a report from the nonpartisan Congressional Research Service.
Election planned Wednesday
Senate Republicans will hold closed-door, secret ballot leadership elections Wednesday to select new colleagues to fill the top positions.
Kentucky Sen. Mitch McConnell, who has held the Republican leader title since 2007, opted not to continue in that role once the new Congress begins, leading to a three-way race between Cornyn, Scott and Thune.
Whoever Republicans elect as their next leader, along with the other members of the leadership team, will have a significant role determining the Senate’s agenda for the next two years as well as setting the tone with the incoming Trump administration.
They’ll also need to broker deals with Democrats on must-pass legislation, like the annual government funding bills and yearly defense policy bill.
Wyoming’s John Barrasso is running unopposed for the whip position, currently held by Thune and previously held by Cornyn.
Arkansas Sen. Tom Cotton and Iowa’s Joni Ernst are competing to hold the No. 3 leadership position of Conference Chair, currently held by Barrasso.
Republicans will also elect a Policy Committee Chairman, Vice Chairman of the Conference and chair of the National Republican Senatorial Committee to round out the six-person Senate leadership team.
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