How the President Can Circumvent GOP Gamesmanship on Appointments

Dr. John Eastman explains how President Trump can force Congress into recess and get his languishing nominees in place.

US Capitol

Dr. John Eastman is a Senior Fellow at The Claremont Institute, and former professor of constitutional law and law school Dean. He represented President Trump in several challenges to illegality in the conduct of the 2020 election.

There are about 2.5 million civilian employees in the executive branch of the federal government. The American people have the opportunity to vote for only one officer of that branch—the president of the United States—who, together with his selected vice president, serve as the head and the embodiment of the principle of consent of the governed in the executive branch. To ensure that executive branch employees work in tandem with the agenda of the president elected by “We the people,” there are about 1300 officers who are appointed by the president after the advice and consent of the U.S. Senate.

Some of these officers are members of part-time boards and commissions, or ambassadors to a variety of small countries around the world. These employees don’t really have a role in supervising the numerous executive departments and agencies. What remains are about 800 positions that the president can fill with the Senate’s consent, to oversee the vast bureaucracy. And of those remaining 800, about 177 are in “term” positions or carryovers from the prior administration for which President Trump has not made a replacement nomination.

But he has nominated 371 people thus far, according to the tracker compiled by The Partnership for Public Service and the Washington Post. Of those, the Senate has confirmed only 126. More than half a year into President Trump’s term, these 126 are expected to oversee a bureaucracy of some 2.5 million. To put that in context, President Obama had nearly 300 of his nominees confirmed by this time in his first year in office.

Languishing in the Senate are 241 nominees, including nominees to such national security positions as the inspector general of the CIA, the director of the National Counterintelligence and Security Center, the inspector general of the Intelligence Community, the general counsel of the Office of the Director of National Intelligence, the undersecretary for intelligence and analysis at the Department of Homeland Security, the undersecretary for nuclear security at the Department of Energy.

Given the explosive recent revelations and criminal referrals by Director of National Intelligence Tulsi Gabbard about how Obama and Biden administration officials manipulated intelligence assessments to create a phony narrative meant to undermine President Trump’s first administration, these positions should be extremely high priority. So should top positions at the Department of Justice, where the criminal referrals were sent, but even there, key roles such as the associate attorney general (the third highest position in the department) and the assistant attorney general for the criminal division, remain languishing in the Senate.

One suspects that President Trump is growing increasingly (and rightfully) frustrated by the inability of the U.S. Senate to act on his nominees for these and many other crucial positions in the Executive branch—particularly since the Senate is ostensibly under majority control of the president’s own party. Yet the Senate, under the leadership of the Senate Majority Leader, Republican John Thune, adjourned on Saturday night, August 2, without acting on the hundreds of pending nominations. A single U.S. Senator will now participate in a charade, convening at 1:00 p.m. every third day for a brief moment in a pro forma session in order to not be formally in “recess.” Why? Because under Article II, Section 2, Clause 3 of the Constitution, the president has the power to appoint people to vacancies when the Senate is in recess for more than 10 days.

Preventing the president from exercising his recess appointment power may make some sense when the Senate is controlled by the opposition party, but when, as now, it is controlled by the president’s own party, whose ability to confirm his nominees has been obstructed by delay tactics of the opposition minority party, the pro forma sessions only serve to reward those trying hamper the president’s ability to get people in place to help him with the agenda he was elected to pursue.

The House of Representatives began a similar set of every-third-day “pro forma sessions” a week earlier, reportedly to avoid a roll call vote on a call to release the Jeffrey Epstein files. That makes little sense, however, because the possibility of such a vote will still be there when the House returns from its August recess in September.

So why is the House also in pro forma sessions every third day? Because Article I, Section 5, Clause 4 of the Constitution provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” So the failure to go into recess and allow President Trump to make recess appointments is back on Majority Leader Thune, and he seems adamant about not taking a real August recess that would allow the president to exercise his recess appointment power.

There is, however, a constitutional way around this logjam, though the authority has never been utilized. Article II, Section 3 of the Constitution gives the president the authority to “adjourn” the two houses of Congress “to such time as he shall think proper” “in case of disagreement between them, with respect to the time of adjournment.” House Speaker Mike Johnson has it fully within his authority to reconvene the House in a regular session instead of a pro forma session, hold a vote to adjourn for the entire August recess, and request the Senate’s consent to the adjournment. If the Senate refuses to consent, the president’s power to adjourn the Congress until whatever day he thinks proper—the date both Houses have already determined to end the “pro forma session” charade and return to full duty in early September would be a good one—would be triggered, as would his recess appointment power.

Speaker Johnson, the country is waiting for you to act so that President Trump can get his nominees in place and move forward implementing the agenda for which “We the People” voted.