Recess Appointments.

Funny how the chest-beaters are condemning recess appointments, a practice which has been going on throughout our history for a wide variety of reasons, as something uniquely Trumpian and a grave threat to liberty and separation of powers, and that’s before Trump has even been sworn in. Its liberal use by Bush 43 and Clinton largely escaped their attention not to mention overly emotional outbursts.

Of course, there’s another constitutional issue the chest-beaters utterly ignore: what if the Senate, say a combination of a majority of Democrats and a small faction of Never-Trump Republicans, slow-walk the president’s nominees, thereby preventing him from assembling the team he wants to carry out the mandate the voters recently gave him?  Is that what the Framers intended?  The framers not only feared a tyrannical president but a tyrannical legislature.  They didn’t create a parliament.  And the Senate itself, drastically changed by the 17th Amendment, is not populated as the Framers originally intended.

Since our republic’s founding, every position from Supreme Court justices to much less significant presidential appointments has been made by recess appointments, for various political and governing reasons and lengths of time. Donald Trump didn’t invent the idea.  And we needn’t go back to the days of George Washington and the difficulty of travel than to determine its relevancy today.  The last 25 years will do.  Obama, Bush, and Clinton made hundreds of recess appointments.

Yes, the Supreme Court more recently placed some limits on the practice, but it did not torpedo the practice altogether despite the chest beaters’ propaganda. If the practice is to be eliminated in full the Court could have done so, but it didn’t. The only constitutional alternative is an amendment abolishing recess appointments - a difficult course, indeed. There’s no movement to do so.

Even if possible, it would greatly increase the power of a majority of senators, two-thirds of whom did not stand for re-election, to broadly thwart a newly elected president’s ability to make his most important and crucial appointments to cabinet posts to oversee and manage a massive bureaucracy of 2 1/2 million bureaucrats, which in itself is a law-making Leviathan — a fourth branch of government— that thwarts representative government and separation of powers. The framers never dreamed an elected legislature would delegate its central constitutional power to an unelected executive branch monstrosity. Locke and Montesquieu, who had great influence on the framers thinking, characterized such a delegation as both illegitimate and tyrannical.

As an aside, my admiration for the late Antonin Scalia is second to none.  As some have said, he rejected the broad use of recess appointments. Most of us do as a general matter and in the abstract. But he also supported the Chevron decision, which constitutionalized, if you will, the enormous and largely unchallengeable law-making authority of the bureaucracy. It was a disastrous decision that Scalia later regretted and the current Court bravely corrected and effectively reversed.

The elimination of recess appointments, even if it were possible, would create other issues involving balance of power and separation of powers either ignored by or not contemplated by, its most vocal promoters, who seem uniquely animated by their dislike for President Trump and his announced nominees than any constitutionally consistent principle. But if they had their way, and the power was removed from the constitution, I can foresee Senate Democrats, who are relentlessly conniving for ways to thwart the constitution, blocking wholesale a Republican president’s top political nominations in order to cripple his presidency, blunt his campaign promises, prevent his effective control over the bureaucracy, and more. Indeed, the long list of constitutional and traditional usurpations urged by the modern Democrat Party would shock the framers as they shocked the voters on Nov. 5, who soundly repudiated them.

This topic is much more complicated than the chest-beaters would have you believe.

Much more later.