The Washington Times posted an article yesterday about an aspect of the Trump presidency that I think has been largely ignored.
The article notes:
Ronald Reagan made nearly 250 recess appointments during his time in office. Jimmy Carter and George H.W. Bush made dozens each. George W. Bush made 171, and Barack Obama notched 32.
President Trump, meanwhile, stands at a big zero.
No other president has gone this deep into an administration without making a recess appointment. In fact, he is poised to become the first president never to get one — save William Henry Harrison, who died just one month into office.
The article also reports:
The Constitution places the recess power in Article II, which lays out the role of the executive branch, assigning the president “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.”
That was the key trade-off: The president could fill vacancies, but the appointees’ terms were limited unless the Senate voted to approve them.
In the early years of the republic, when Congress was frequently out of session for a majority of each year, it was standard for a president to begin his tenure with a slew of recess appointments for posts that opened during the transition.
In recent years, the political rancor between the parties has changed that and recess appointments are not always confirmed–John Bolton is one example of this and I am sure there are others. President Trump thinks like a businessman. The article notes that he has used the Federal Vacancies Reform Act to make ‘acting’ appointments that allow him to remove people or move them when he sees fit.
The article concludes:
Analysts debate whether the recess appointment has become a constitutional anachronism. But some are wondering whether Mr. Trump might try to use that power heading into the last year of his term.
Even if Congress never goes into a full recess anymore, it still divides each year into a separate session — and on Jan. 3, both chambers will gavel out the first session of the 116th Congress and gavel in the second session.
The Supreme Court was silent on that type of recess in its Noel Canning ruling.
There is precedent for using the intersession period to make recess appointments. Roosevelt used the tactic in his 1903 power play.
One of the biggest mistakes America ever made was to air condition Congress so that they could stay in session during the summer.