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So one of the problems that Trump ran into in his first Administration was that he wanted his agencies to implement his policies really fast. Unfortunately, because government is not like a private business, that's not always possible. The federal government is constrained by the Administrative Procedure Act, which requires agencies to actually evaluate their policies and justify them with reasons other than "the CEO wants to do this." There's no substantive limits imposed by the APA, but it does require that process. For whatever reason, Trump's agencies didn't engage in that process (either because some of them were headed by people new to the federal government, or because they responded to directions to move more quickly than the APA allowed) - and Trump had a bunch of things tossed by the courts.

His weird demand on recess appointments shows that he hasn't quite learned his lesson. The SCOTUS decision in Canning, which held that Congress' pro forma sessions were sufficient to keep the recess appointment power from being triggered, was very hostile to the recess appointment power in the modern era. The Court's discussion made it clear that they were taking a pretty operational approach to interpreting the Clause - it's intended to make sure that when Congress cannot consider an appointment, the position can be filled so that there isn't a vacancy. It balances the Constitution's very clear role for the Senate against the practicalities that sometimes the Congress just isn't around, at least back in the days before air travel. But because short recesses don't present that problem (Congress will be back soon to take up the nomination in due course), anything less than ten days is presumptively too short to trigger the power.

Going out and asking the Senate Majority Leader to deliberately call a recess in order to sidestep the Advice and Consent Clause therefore seems....phenomenally short-sighted? If one of his nominations gets blocked/can't pass through the normal Senate process, and Thune calls a 12-day recess (just to pick a number), it seems somewhat unlikely that the courts will find the recess appointment to be legal. Every action taken by that person - possibly including firing the people that Trump wants fired - will be subject to challenge, just like in Canning, on the grounds that they weren't lawfully appointed to the position.

This Court already has shown no respect for precedent. What makes you think they will care about Canning? They seem to treat precedent like toilet paper.

It's a Trumpie court that will probably give him anything he wants that isn't blatantly unconstitutional. And, even then, I wouldn't make a bet on that.

The SCOTUS decision in Canning, which held that Congress' pro forma sessions were sufficient to keep the recess appointment power from being triggered, was very hostile to the recess appointment power in the modern era.

Putting it mildly. In fact, in the Concurrence opinion written by Scalia and joined by Roberts, Thomas, and Alito said that "...the recess appointment power is an anachronism." The Concurrence argues that the recess appointment power should only apply to vacancies that arise while the Senate is in recess. Which actually kinda makes sense, historically and especially now.

Pete

This Court already has shown no respect for precedent. What makes you think they will care about Canning?

It was a unanimous decision - with Roberts, Thomas, and Alito wanting to go further and hold that the Clause didn't allow any recess appointments during the actual Session of the Senate, and applied only to vacancies that arose and were filled between the two Sessions. Many of the Justices have little respect for precedent that they have long disagreed with and did not author; but they're pretty unlikely to backtrack on positions they themselves have taken.

but they're pretty unlikely to backtrack on positions they themselves have taken.

Call me cynical, but the Canning decision was made regarding Obama appointments.

This would potentially be about Trump appointments.

That’s not supposed to make a difference, but I am among those who have lost some faith in the courts’ ability to act impartially.

—Peter

That’s not supposed to make a difference, but I am among those who have lost some faith in the courts’ ability to act impartially.

Me, too. Me, too. But...

I's one thing to go back on precedent such as Roe v. Wade with the Dobbs decision; seems quite a step to go back on one's own decision, which in Thomas', Alito's, and Robert's case was actually much more strongly worded against recess appointments than the moderate wing's majority opinion.

Could happen, of course, but this kind of backtracking would be quite the next step in court partisanship and something we haven't seen yet.

Yet.

Pete

How long will it take the democrats to get in front of the Supreme Court with this?

How long will it take the democrats to get in front of the Supreme Court with this?

To the SCOTUS? At least two years.

But that doesn't really help Trump. Canning was not a direct challenge to the appointment of the contested NLRB member - it was a collateral attack against one of the actions taken by the member. A similar collateral attack could be brought almost immediately against any recess appointee.

So if Gaetz is named AG as a recess appointment, any action he takes can be challenged in district court on the grounds that he lacked the authority to do it. So if he fires someone, that person would go into court and ask the judge to issue an injunction against DOJ firing him, on the grounds that the AG wasn't properly appointed. Or if he takes any action on any of the many law enforcement actions that are routinely and regularly brought by DOJ to, you know, prosecute any criminal that's violated federal law.

In that posture, a plaintiff could get a ruling on a temporary injunction within weeks - if not days - of the first action taken by the appointee, depending on the circumstance. If the judge ruled for the plaintiff, it would effectively paralyze the appointee until the injunction was lifted.

In that posture, a plaintiff could get a ruling on a temporary injunction within weeks - if not days - of the first action taken by the appointee, depending on the circumstance. If the judge ruled for the plaintiff, it would effectively paralyze the appointee until the injunction was lifted.

This assumes the democrats can actually stop Trump from getting anyone through the Senate...which they really can't.

This assumes the democrats can actually stop Trump from getting anyone through the Senate...which they really can't.

The GOP has 53 votes (assuming they win PA), so it is certainly true that the Democrats cannot by themselves block an appointment. But they only need four Republicans to block a nominee.

Trump's floating of the recess appointment idea in the context of the Majority Leader vote suggests that they believe at least one of their significant appointments may not have 50 votes today. Gaetz is the most obvious choice of the ones that have been announced so far. If RFK, Jr.'s heading to a spot that requires confirmation, he might also be in that boat.

It is very rare for the Senate to refuse a cabinet appointment for a President from their own party. But man, if there was someone who might fall into that rarefied category, it might be Gaetz at AG.

Trump's floating of the recess appointment idea in the context of the Majority Leader vote suggests that they believe at least one of their significant appointments may not have 50 votes today.

Not necessarily. It took AGES last time for Trump to assemble his Cabinet because the democrats played games to stop him from governing. If there is a mistake to avoid, it's in trusting them to accept losing the election and allowing a new administration to govern.

They won't make that mistake again, so hence the recess appointments.

Not necessarily. It took AGES last time for Trump to assemble his Cabinet because the democrats played games to stop him from governing. If there is a mistake to avoid, it's in trusting them to accept losing the election and allowing a new administration to govern.

They won't make that mistake again, so hence the recess appointments.

AGES? Really? Donald Trump had his last cabinet official confirmed on April 28, 2017 (Acosta at Labor). Coincidentally, that's the exact same day that Barack Obama had his final cabinet official confirmed - April 28, 2009 (Sibellius at HHS).

It's also worth remembering that the Democrats in question here didn't lose their elections. There's 47 Democratic Senators that won their last election, just like Donald Trump won his. So they also are fully entitled to the powers of their office, which include having a role in the Senate's confirmation hearings.

Accepting that Donald Trump won the election does not require anyone to stand down from using their office to try to affect how he governs. Again, the federal government is deliberately and intentionally not like a business, where the CEO is the only one in charge. Trump is entitled to make his nominations....and the Senate is entitled to Advise and Consent, which may involve making those nominees provide information or sit for hearings, and even (perhaps) not get confirmed at all.

the Democrats ... only need four Republicans to block a nominee.

Unlikely. It would be political suicide for a house Republican to cross Trump at this juncture.

Accepting that Donald Trump won the election does not require anyone to stand down from using their office to try to affect how he governs.

If it's games the democrats want, then it's games the democrats shall have. What's different this time is that Trump isn't headed into office assuming that the democrats are interested in a functioning United States government. This time he's learned from experience that the dems are merely there to gum up the works and will act accordingly.

And good for him. The democrats won't learn anything unless it's The Hard Way, so let the teaching begin.

If it's games the democrats want, then it's games the democrats shall have.

See, this is how one side always views bi-partisan government: when members of congress exercise their mandate as the opposition, it is a game. Maybe that's how many view government itself - one big game that has winners and losers v. an effort to make things better for all. So very sad.

Pete

See, this is how one side always views bi-partisan government: when members of congress exercise their mandate as the opposition, it is a game. Maybe that's how many view government itself - one big game that has winners and losers v. an effort to make things better for all. So very sad.

Not sad.

Reality.

You people can't chant "RESISTANCE" and gum up the works all you want. You can't conduct lawfare and abuse private citizens all you want. You can't stalk officials in public and protest at their homes without sending a message. And you can't make the government so incompetent that it barely runs at all without consequences.

So now...here come the consequences. Trump is putting people in place who have zero F's to give.

Do you all think you can call more than half the country a bunch of garbage Nazis repeatedly and then pretend it would have no effect?

Nope. Whatever Trump does that you hate, it'll make the country better and stronger because it'll be the opposite of all the damage the left has done to our nation going back to 2008. It's about time.

It would be political suicide for a house Republican to cross Trump at this juncture.

I'm not so sure of that. Apparently, the electorate has an incredibly short memory. It was only 4 years ago that they tossed Trump out of office. Now they put him back in. You can't tell me that Harris is all that different from Biden in terms of policies.

They'll forget what appointments their Senator blocked by the next time he is up for reelection. Heck, some of them will forget by next week.

--Peter

Accepting that Donald Trump won the election does not require anyone to stand down from using their office to try to affect how he governs. Again, the federal government is deliberately and intentionally not like a business, where the CEO is the only one in charge.

Thank you, thank you, thank you for saying this! Trump was elected President, not Dictator. It seems to me that not everyone understands the difference.

What's different this time is that Trump isn't headed into office assuming that the democrats are interested in a functioning United States government. This time he's learned from experience that the dems are merely there to gum up the works and will act accordingly.

Again, I think you're misremembering here. Trump didn't experience any much greater delay in filling his cabinet than recent past presidents. Just like every other President, nearly all the cabinet slots were confirmed by early March. Even Betsy DeVos, who was his most controversial and opposed pick, was confirmed on February 7. It took a tie-breaking vote from Pence, but she was confirmed in two and a half weeks. Again, the only real laggard was Labor, because Puzder drew the ire of Republicans in the Senate due to his hiring of an illegal immigrant housekeeper and some tax issues and had to withdraw the nomination. That happens from time to time, Obama had Tom Daschle (causing the HHS confirmation to be delayed). Clinton had Zoe Baird for AG. Bush 41 had John Tower at Defense.

It's understandable that Trump doesn't want his appointments vetted - I'm sure every President would prefer if the Founders had not given the Senate a role in who can serve as an officer of the United States. But that's not the system we have. Power is divided between the Executive and the Legislature, and even on things like staffing the cabinet the President does not get to act alone.

Unlikely. It would be political suicide for a house Republican to cross Trump at this juncture.

Not the House - the Senate. It would not be shocking for a few Senators to vote against Gaetz, given his lack of legal and/or executive experience and his....demeanor. If RFK, Jr. gets named for HHS I can see him having some problems as well.

Hegseth will be closely vetted - not because he's necessarily objectionable in terms of his policies or positions, but because there's quite a few GOP Senators who care an awful lot about the military and are going to take a very close look at whether they think he's up to the job of running that organization. Unlike Gaetz or RFK, Jr., I think all of those Senators might be open to him having the job - but he's someone whose nomination can rise or fall depending on whether the GOP Senators think he's capable or not.

AGES? Really? Donald Trump had his last cabinet official confirmed on April 28, 2017

River memory hole is deep and wide,
Alleluia…..

It took AGES last time for Trump to assemble his Cabinet because the democrats played games to stop him from governing. If there is a mistake to avoid, it's in trusting them to accept losing the election and allowing a new administration to govern.

Nah, it was because Trump never planned on winning, so he and his staff hadn't really given any true thought to what happened next, so their incompetence showed. The rest seems to be you projecting again.

Again, I think you're misremembering here. Trump didn't experience any much greater delay in filling his cabinet than recent past presidents.

No recollection on the other side,
Al-le-lu-u-ia

"Not the House - the Senate. "

Yeah yeah yeah... The Two Houses of Congress... I should have written more precisely.

Except for RFK Jr and Gaetz, maybe. The depth to which the Rs are sinking seems to have no limit.

Hell, they support a compulsively lying racist, a felon/rapist with multiple convictions for fraud.

It was a unanimous decision - with Roberts, Thomas, and Alito wanting to go further and hold that the Clause didn't allow any recess appointments during the actual Session of the Senate, and applied only to vacancies that arose and were filled between the two Sessions. Many of the Justices have little respect for precedent that they have long disagreed with and did not author; but they're pretty unlikely to backtrack on positions they themselves have taken.

OK, but there’s a different route, I think. Here is Section 3, Article 2:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The President “may” and “on extraordinary occasions” - adjourn the Senate until a time he thinks “proper.” So he adjourns the Senate, in toto, installs every cabinet member as a recess appointment, and proclaims to his Supreme Court “OK, now I think it’s time to get the Senate back together.”

A literal reading of the Constitution allows him to do that. How would the (supposed) “originalists” contort themselves to say “Oh, well that’s OK, then.”?

A literal reading of the Constitution allows him to do that. How would the (supposed) “originalists” contort themselves to say “Oh, well that’s OK, then.”?

They wouldn't. The Advise and Consent Clause is a check on the Executive's power. They probably would not regard an adjournment that the President created as being a "recess" for the purposes of the Appointments Clause. Even if they did accept that adjournment as a "recess," he'd still be in the same pickle under Canning - a recess only counts for the purpose of that Clause if it's a time when Congress is genuinely and unavoidably available to properly staff the government vacancy, not a short time that will be resolved in due course.

Canning was a pretty strong decision in favor of Congress' power to prevent recess appointments. It didn't eliminate them entirely (though Thomas, Roberts and Alito were willing to go that far), but it's hard to imagine any non-emergency circumstance in the modern era that would qualify for a recess appointment these days under that decision.

Again, I think you're misremembering here. Trump didn't experience any much greater delay in filling his cabinet than recent past presidents. Just like every other President, nearly all the cabinet slots were confirmed by early March. Even Betsy DeVos, who was his most controversial and opposed pick, was confirmed on February 7.

I'll assume you have this right.

My main point still stands: he wants to hit the ground running and get things done. The democrats have zero interest in doing anything that would help him right the ship and as such will do everything in their power to block him asserting control over the federal government.

No recollection on the other side,
Al-le-lu-u-ia

River memory hole is deep and wide,
Alleluia…..

Two replies on the same thing? Meow. That kind of catty is sooooo PA ca 2013.

My main point still stands: he wants to hit the ground running and get things done. The democrats have zero interest in doing anything that would help him right the ship and as such will do everything in their power to block him asserting control over the federal government.

They're the opposition party. They disagree with him about what is necessary to "right the ship," and of course they will exercise what powers they have to oppose him pursuing policies that they disagree with. Which is what every opposition party does, by definition.

As we've discussed, the federal government is unlike any private business. The President doesn't have unilateral control over the federal government. He has the entirety of the Executive Power - but Congress sets the policies and writes the laws and establishes the structure and allocates the budget and reviews the appointments of all of the officers of all of those agencies. The President is not the only one in charge of the government.

This is incredibly frustrating to people who conceive of the President as if he were the head of a company, because that's not how private companies are set up. But the intent - the entire purpose - of this framework is to allow Congress to serve as a check and restraint on the President's power. The fact that Congresscritters are using that check will undoubtedly irritate the President and his supporters, but that's the way the government is set up. But they also won their elections, and so they get to exercise the power of their offices.

he wants to hit the ground running and get things done. The democrats have zero interest in doing anything that would help him right the ship and as such will do everything in their power to block him asserting control over the federal government.

That is exactly what Republicans did 4 years ago when Biden won the Presidency and Democrats were in slim control of Congress. I'm sure you lauded Republicans at that time for opposing everything that Biden and the Democrats wanted to do.

The shoe is now on the other foot. Republicans are in the White House and have slim control of Congress. Democrats are going to do now exactly what Republicans did then. Except for the lies about election integrity and the dozens of frivolous court cases and the insurrection.

--Peter

They're the opposition party. They disagree with him about what is necessary to "right the ship," and of course they will exercise what powers they have to oppose him pursuing policies that they disagree with. Which is what every opposition party does, by definition.

Opposition parties don't usually gin up conspiracy theories ginned up from paid foreign agents. Opposition parties don't use said bogus information to obtain bogus search warrants and lie to the FISA court so as to gain the ability to wiretap American citizens.

And opposition parties don't use all that stuff to set up a running 2 year stunt with a farce of an impeachment proceeding.

The democrats did all that. They're not an opposition party; they're acting more like an outfit hellbent on disrupting the government.

So if I'm Trump, I:
-Assume they have the worst in mind
-Assume every word they say is a malicious lie
-Act accordingly

Hence the sped up appointment process.

They're the opposition party. They disagree with him about what is necessary to "right the ship," and of course they will exercise what powers they have to oppose him pursuing policies that they disagree with. - albaby

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I see a distinction here,

"theywill exercise what powers they have to oppose him pursuing policies that they disagree with". If "they" mean the opposition party in congress, then no problem.

However, if "they" includes opposition party operatives, working diligently, often covertly, from within the Executive to undermine a duly elected president, well, that's a whole 'nother kettle of fish.

My main point still stands: he wants to hit the ground running and get things done. The democrats have zero interest in doing anything that would help him right the ship and as such will do everything in their power to block him asserting control over the federal government.


Yes, I surely hope the Democrats can slow Trump's race to autocracy. That would be a good thing.

'asserting control over the federal government'? I think you mean turning it into an absurdist cluster****.

"My main point still stands: he wants to hit the ground running and get things done. The democrats have zero interest in doing anything that would help him right the ship and as such will do everything in their power to block him asserting control over the federal government." - Dope

Actually, your main point has been rebuked many times, you just ignored it.

The Democrats will do exactly what the Republicans did under Biden and Obama. I still sometimes am amazed that you cannot grasp what basic political opposition is. You are ok when Republicans do it and whine when Democrats do it. The lack of self-awareness amazes me sometimes. Then I remember the source.

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