Why recess appointments are a bad idea

When the founders added the “recess appointments clause” to the Constitution, it generated little discussion. Alexander Hamilton, in Federalist Paper No. 67, said it was just a supplement “for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.”
Nothing more. It was adopted unanimously and without debate.
Makes you wonder what they would say today. I hope it would be something to the effect that the use of this clause in the 21st century violates the spirit of the Constitution. Or, as The Wall Street Journal editorial board said recently, it would be “anti-constitutional.”
Times have changed, of course, since the 18th century. The Journal editorial board added that the Constitution included the recess clause “because the founders had to travel to and from the national capital by horse,” and because “The point was to prevent the president from being left short-handed.”
And so, Article 2, Section 2 of the Constitution grants presidents the 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.”
But this is the age of swift travel and instant communication. Presidents are never left short-handed. During the COVID-19 pandemic, members of the House of Representatives were allowed to vote remotely, using proxies to physically cast votes in the chamber under strict instructions.
As modern office workers with smart phones have learned, it’s impossible ever to be truly absent from work, and so it is with lawmakers.
Remote voting in the House was a temporary privilege, but it illustrates the point. The need for a president to retain the power of a recess appointment has gone the way of buggy whips and Morse code, except for its use as a political loophole.
President-elect Donald Trump has announced two appointments that bring this clause to the fore. He has named Matt Gaetz, who until recently was a representative from Florida, as his pick for attorney general. Gaetz was being investigated by the Justice Department in connection with the alleged sex trafficking of a 17-year-old girl — allegations he has consistently denied and for which he never has been formally charged.
That investigation ended upon his resignation from Congress, but some senators, including some Republicans, have asked to see the ethics report associated with it.
The other appointee is Pete Hegseth, a Fox News host and former Army National Guard officer. He is Trump’s nominee for defense secretary, but he, too, is connected to allegations of sexual assault. His attorney has admitted Hegseth paid a woman to prevent her from filing a lawsuit, although he has denied any wrongdoing.
Trump, for whom subtlety was never a strength, posted on Truth Social, “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments.”
Recess appointments do not require confirmation hearings, at which senators sometimes ask probing (and embarrassing) questions. But in order to make such an appointment, both chambers of Congress must agree that the Senate is in recess, and it must be in recess for at least 10 days.
For its part in this loophole charade, the Senate has made a practice of perpetually being in session, even when its members are far away. This is done by having one senator gavel the empty chamber into session, and then into adjournment, every few days. In 2014, the Supreme Court approved of this tactic.
In the long history of the republic, the Senate has rejected only nine cabinet appointments outright, according to constitutioncenter.org. Others have voluntarily withdrawn when, for whatever reason, they have become political liabilities. For the rest, the Senate has usually granted leeway for presidents to appoint whom they want to fill cabinet posts.
But the founders gave the Senate the power of “advice and consent” to all presidential appointments for a reason.
Getting back to Hamilton, he addressed this power in Federalist Paper No. 76: “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,” he wrote.
Doing away with the power of recess appointments would require a constitutional amendment, which isn’t likely. Other presidents have misused this power. That doesn’t make it right. Using it purely for political purposes and to bypass politically messy hearings makes a mockery of the spirit of the Constitution.