Two days ago president-elect Donald Trump broke the calm of his remarkable post-election silence with this tweet (underlining added):

Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner. Sometimes the votes can take two years, or more. This is what they did four years ago, and we cannot let it happen again. We need positions filled IMMEDIATELY! Additionally, no Judges should be approved during this period of time because the Democrats are looking to ram through their Judges as the Republicans fight over Leadership. THIS IS NOT ACCEPTABLE. THANK YOU!

It’s not entirely clear what Trump means. When he talks about needing to make recess appointments so that positions can be “filled IMMEDIATELY,” he seems to be contemplating making recess appointments to Cabinet positions at the outset of his presidency. His confusing insistence on the Senate’s not confirming judges “during this period of time” reinforces the sense of immediacy. (I say “confusing” because any Senate confirmations of pending nominees would happen before Jan. 3, which is not the same “period of time” in which Trump would be making nominations.)

If this is what Trump means, it’s an awful and anti-constitutional idea. Let’s run through the reasons:

1. Under Article II of the Constitution, the president’s primary power to appoint his principal officers is subject to the condition that his nominations receive the “Advice and Consent of the Senate.” As Hamilton explains in Federalist No. 76, the Senate’s power to approve or reject nominations “in ordinary cases” provides “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters”:

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. [Underlining added.]

In short, it’s a fundamental general feature of our system of separated powers that the president shall submit his nominations for major offices to the Senate for approval. That feature plays a vital role in helping to ensure that the president makes quality picks.

To be sure, the Constitution also provides a backup provision that allows the president to make recess appointments—“to fill up all Vacancies that may happen during the Recess of the Senate.” But as Hamilton explains in Federalist No. 67, this “auxiliary method of appointment” is “nothing more than a supplement” to the “general mode of appointing officers of the United States” and is to used “in cases in which the general method was inadequate.”

A scheme of generally installing Cabinet officials by recess appointment would turn this system on its head. Those supporting it would rightly have been outraged if President Biden had undertaken such a subterfuge, yet they seem not to care that they are paving the way for the next Democratic president to do so.

2. Trump has no conceivable need to make recess appointments of his Cabinet officials. Republicans will control the Senate with an ample majority. Quality nominations that Trump makes will be promptly confirmed. Indeed, just as it did in 2017, the Senate can hold hearings on Trump’s intended nominations in the period between the convening of the Senate on January 3 and Trump’s inauguration on January 20.

Trump’s suggestion that he faced extraordinary delays in getting his major Cabinet officials confirmed four years ago is belied by the record. The Senate confirmed his nominees for Secretary of Defense and Secretary of Homeland Security on January 20, 2017, his Secretary of State on February 1, his Attorney General on February 8, and his Secretary of Treasury on February 13.

3. Such a scheme would require that the Senate go into recess for 10 days on or shortly after January 20. It is difficult to imagine a more shameful display of subservience by a Senate majority leader.

4. This scheme also faces a major obstacle. Federal law (5 U.S.C. § 5503) generally bars paying a salary (or any other compensation) to a recess appointee:

Payment for services may not be made from the Treasury of the United States to an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate.

So if Biden’s Cabinet officials were to resign before the Senate went into recess, anyone Trump  recess-appointed to their positions would not receive any pay. (Section 5503 has exceptions that allow payment to recess appointees in other circumstances.)

***

But perhaps Trump means only that he wants assurance that the Senate will return to its longstanding practice of formally adjourning for recesses instead of technically remaining in session via pro forma proceedings. This is a much more modest and reasonable request, and Don McGahn, Trump’s first White House counsel, makes the case for it in an op-ed in today’s Wall Street Journal.

I’ll limit myself to two comments on this lesser proposal. First, majority leader Mitch McConnell in April 2019 led a successful effort to change the Senate rule on post-cloture debate on nominations for sub-Cabinet positions (and district-court seats): That change reduced the time for post-cloture debate from 30 hours to two hours and thus dramatically diminished the minority’s leverage to stall these nominations. So it is doubtful that Trump would need to make recess appointments for important sub-Cabinet positions.

Second, the main concern about enabling recess appointments is that a president would abuse the authority to install unworthy candidates to key positions. If a Senate majority leader were to commit in advance to the Senate’s taking a formal recess, he would be encouraging that abuse. So the best way for Trump to persuade the Senate to adjourn for recesses is for him to make quality picks through the ordinary advice-and-consent process and have only minor positions left to fill via recess appointments.

Excerpts: nationalreview.con

ED WHELAN holds the Antonin Scalia Chair in Constitutional Studies at the ETHICS AND PUBLIC POLICY CENTER. A regular contributor to National Review’s blog BENCH MEMOS, he has closely covered every Supreme Court confirmation since 2005.