The Power and Limits of Recess Appointments: Jeff Clark

for a lot of the history of the Republic the nominees of the president both to serve in the executive branch and the nominees of the president to serve in the judicial branch sailed through relatively quickly it's a lot of red tape that's been added like my confirmation took 14 months it's like night and day from the process that drafters of the Constitution intended as part of our special series on the US Presidential transition period I'm sitting down with Jeff Clark assistant attorney general at the justice department during the previous Trump Administration and now senior fellow and director of litigation at the center for renewing America what are recess appointments why is Trump so interested in them are there legal or historical precedence for them and how could they impact the effectiveness of this coming Administration this is American thought leaders and I'm Yan [Music] Kell Jeff Clark such a pleasure to have you on American thought Le ERS thank you Yan it's good to be here I enjoy your show well thank you so president Trump has indicated that he wants to use recess appointments to put people into his cabinet into into other positions so can like explain to me what this is all about and why he might be talking about that so prominently sure and I think that's the right characterization I think he's thinking about using the recess appointment power and then how that relates to another Power I can describe in terms of how Congress takes recesses in the first place and it's a power that's been used many times before there are a lot of very important legal questions bound up in using that power and there's a lot of push back on that but also it has a political Dimension to it and so the recess appointments Clause is the the source of the power that we're talking about and so it's in article uh two section two clause three of the Constitution and it gives the power when Congress is in recess for the president to appoint someone without any kind of Senate confirmation process it's just the president solely Taps someone on the shoulder and says I would like for you to serve this office in my government can be in you know any any Department any agency and then that person can begin to serve once they receive a piece of paper called a commit and uh normally the appointments Clause the base appointments Clause is in Article 2 Section 2 Clause 2 and it says that the president uh can appoint someone and then they go into office if uh the the Senate confirms them and so that's a joint process with the Senate so the one power is one where it's a a Cooperative power essentially with the Senate although the president's in the predominant role of picking the person the Senate doesn't get to pick someone they just get to do thumbs up thumbs down and then the recess appointment Clause involves only an exercise of Presidential Power so those are the the two powers and the dispute is coming up because the Senators are very interested many of them anyway in especially the Democrat Party senators in preserving their power to give their vote on whether a particular nominee of President Trump should get the thumbs up or thumbs down so if the president shifts to using recess appointment Clause Powers more frequently they don't get that uh attempt to try to influence the process um why do you think that President Trump is talking about this prominently at this moment I think because he uh is seeing that the the confirmation process as it has evolved over time especially if you look back at The Early Republic has really bogged down and it's become an opportunity for political gz it's become an opportunity to slow the process down therefore it's become a process to resist uh president Trump he can't get his team fully in place until especially since we're talking about you know more than a thousand positions you know it's a big bottleneck to go through the Senate on each of those right and and this is not the system that the framers really designed so let me put that in historical context for you so when President Washington was putting together his first cabinet and we've I've looked at the Senate rules at the time right these rules were very simple and they resulted in a very simple confirmation process how would it work the president was actually given the power to go to the Senate and observe the proceedings and maybe uh even preside over them if he wanted to and if didn't preside then it was the vice president uh in his capacity as the president of the Senate who would preside and the nominations might go over early in the day like in the morning and then before the day was over the Senate would vote on whether to confirm that nominee or not and they often did it by Voice vote right so you know that very efficiently and quickly gets president Washington's team in place in order to administer the federal government and obviously that was a smaller federal government right so if the the process was really intended to be more extensive it should have been more extensive at a time when there were you know far fewer government departments uh and fewer positions so as one example right one of the initial members of the president's cabinet was his attorney general and there was no such thing as the justice department it was not created until Circa 1870 I don't think a lot of people know that so even you know you you would think right you would have the luxury to go on maybe for several days a week multiple weeks to have the Senate review uh the nominees but they they didn't see the process that way that wasn't how it was intended by the framers so for a lot of the history of the Republic the nominees of the president both to serve in the executive branch and the nominees of the president to serve in the judicial branch in the article three Judiciary for Lifetime appointments these things you know sailed through sailed through relative ly quickly and the check was uh you know uh a modest one on Presidential Power because the Federalist Papers tell us that the president is really the main driver of this and especially if we're talking about people in his own branch executive branch officials you know that's something that uh to have it you know get to to what we're seeing nowadays in the modern era where you know you have to fill out a very long questionnaire and I can tell you it take a long time to prepare this paperwork the paperwork goes over then you know they have to schedule a confirmation hearing and then you prepare for it you go to it uh you get question by each of the members and then they ask you after that questions for the record or what people call cfers that takes a while to prepare the follow-up questions from the hearing then they have to schedule a business committee meeting on you uh and they have a they take a vote from the committee and then they either report you out favorably or unfavorably and then you you get a closure vote in the Senate and then you get an actual vote on the floor of the Senate I mean this is a very involved process it's like night in Day from the process that George Washington encountered and I think the drafters of the Constitution intended so it's a lot of red tape that's been added and it's a lot of opportunities to just you know drag the process down and and make it so that there are very many qualified people you know excellent people who you know if the process were more stream line might want to serve but they don't have to want to go through their whole life history and if they're tapped on the shoulder and asked will we take an appointment you know let's say you know no thanks right I don't want to be drugged through the newspapers I don't I don't want to be you know subjected to to twisting in the wind potentially for months like my confirmation took 14 months uh from the time that it the papers went over to the Senate to the time that I actually started to serve so you know that the the recess appointments CLA power it's exists it exists in the Constitution hundreds of of federal officials in the past have been confirmed using it from presidents of all parties and it's clearly a power that exists in the conf in the Constitution and it's one that can streamline a lot of this process so that's the president's interest in it he's a businessman he's he's an efficiency expert well so how would you react to someone saying well you know when the Republic was young there was a lot that wasn't yet known about what would happen and indeed you know that some of these you know more advanced procedures were developed in order to be able to can protect the American people from Bad appointments because and that I presumably that's what that would be the argument right and so we we should follow that process so Yan I would push back on that having looked at the history right mean president Washington's initial cabinet includes you know people like Thomas Jefferson right and so uh you know there were excellent choices made the the the reason why the process evolved was not you know to try to create more excellent appointees and in fact for the the reason I gave you in terms of discouraging the service of people who would otherwise be willing to serve because the process has become you know such uh you know filled with red tape I think it's the actually the opposite that's true I think the process has been pioneered in order to try to stir up political forces and one of the first you know big modern uh confirmation messes and it led to a book actually by a Harvard law professor called the confirmation mess is with judge bour so let me describe judge bourke's career to you so judge Bourke is uh an eminent law professor and he's nominated by President Reagan for an opening on the Supreme Court and the Democrats decided that they were just going to try to bring him down by any means and ultimately they did stop his nomination they did that and and it's turned into a verb Yan the verb is borked so judge Bor uh or anyone that the you know uh especially a conservative president nominates to a court uh or you know even sometimes an executive branch official if they're subjected to the kind of you know ill treatment that was shown to judge bour they you know there it's called borking and the presid the the constitutional framers did not imagine borking they did not want borking they wanted deference to the president's choices and if there's someone who you know you find that they uh they took bribes or you find that uh they lack any qualifications for office or uh you know they're um they've been involved in just you know kind of like a mind run of scandals or something th this is what the founders thought would be their check otherwise even if they wouldn't have picked someone for a particular cabinet spot or other spot that's if they want that power they have to run for the presidency and win it otherwise they should be deferring to what the president you know who he wants to put in as his team that's the system they put in place they did not put the borking system in place and the Democrats used the borking system not only to block uh judge bour uh an eminent constitutional scholar from the Supreme Court they they tried the same tactics you know with a uh sexual you know sexual harassment uh angle against Clarence Thomas it failed but they tried it and it became a national spectacle they tried it against Justice Kavanaugh to try to keep him off the Supreme Court you know that failed as well with uh these allegations of Christine blazy Ford and these you know the again the process is not designed for this it become the kind of thing that also I think puts the United States in a bad light it it you know makes these confirmation hearings into you know laughing stocks all around the world and you know our our framers did not foresee that system did not want that system and in the separation of powers fights between the branches right if one branch acquires too much power or they're potentially abusing their power it becomes incumbent on the other branches to push them back and I think here one thing that's attractive to those of us who think that it's time for the president to push back on abuses of the confirmation process is the use of the recess appointment Clause power Jeff we're going to take a quick break and we'll be right back and we're back with former Assistant Attorney General Jeff Clark so you wrote a brief on this with Anthony Lata indeed this is what caught my attention because I was very curious about this recess appointments approach and then you had it you know you laid out for me answers to a whole bunch of questions that I had so why was it necessary to write a brief I mean so far what you're explaining to me sounds fairly simple well I think it's because there's a lot of uh push back both from Liberal constitutional Scholars and even from uh I'll call them mind run you know conservative uh Scholars were conservative think tankers who don't want the president to try to put the confirmation bo uh process back into its original box into its original historical Moorings they think that these you know constitutional uh long confirmation process hearings with you know documents coming in before and and televised hearings and uh documents coming in afterwards and then debates that are also televised I've gone to look at you know what happened inside the business committee meeting about me for instance and then you know any floor debate about it they all these things um they they they they seem to like that process and in part I think they like that process because they think that they they like to use it when they're out of power right and that uh Democrat nominees for executive branch offices can be put on the spot I think that that my perspective on it with uh with young Tony who is uh you know a rising legal Superstar and uh you know very smart guy very studied in the in the learn it in the law uh is that we want to return to the historical process and that's one of the purposes of the center for renewing America is to try to restore the historic Constitution and to shave off its you know misshapen additions and kind of uh overgrowths that have happened since the Republic started and that's why we wrote the paper why don't you give me a picture of what you're arguing sure so the president has the power if the Senate is in recess to Simply tap someone on the shoulder and decide that they will serve in office X could be uh the secretary of agriculture could be the ambassador to Nato and then you know without a lot of to-do that person can begin serving there is uh a time limit on such appointments which is that they can serve until the next session and how long that period is depends on what kind of recess is it issue and there are two kinds of recess one kind of recess is an intercession recess and the other kind is an intrasession recess so there each Congress has two sessions in each Congress they each last a year so the break between the either you know the prior Congress and the first year of the new Congress there's an intercession recess there uh and then uh between the first year and the second year there can be an inter session recess uh but if you were to recess appoint someone during a recess like you know say in in February after the session for the new year has already started that's an intrasession recess if someone is appointed to an inter session recess they serve about a year because the next session is just about to start and so that's the next session and then you can only serve until the end of that if you appoint someone you know in in the first year uh of a congress then they can serve until the next session which is the second year which means that the in trust session recesses can go on for longer so there's a famous Supreme Court case about this it was decided a decade ago it's called NL canning it's nlrb versus NL canning and in that case the President Obama was frustrated by the fact that the National Labor Relations Board had didn't have a quorum and so he put three people on that board so that it would have a quorum and it could start producing decisions and that that agency proceeds by doing adjudications like each thing it does is its own individual case and so they produced some decisions that were uh you know adverse to this company NL canning in the labor law area and uh n canning challenged it because President Obama had made those recess appointments during an intra session recess and the intra session recess was very short it was only three days and let me explain why the recess is very short in order to stop recesses you know uh which give the president this opportunity to recess appoint the senate had taken to doing pro- Forma sessions so they would actually not be conducting any business but they would gavel themselves in and say well we're doing a session and then they'd kind of quickly gavel the the the the session out and then on the fiction that the session was really continuing but it wasn't so President Obama took the position that he could recess a point even during a recess as short as three days so that issue ultimately gets up to the Supreme Court what does the Supreme Court say unanimously it affirms a judgment that invalidated the decisions of the National Labor Relations Board with these three Obama appointees on it and what was the rationale so there was a majority opinion and then there was a concurring opinion the majority opinion written by by Justice Brier who's now not on the court anymore the concurring opinion now uh that was written by Justice Scalia who now you know sadly is no longer with us Justice Brier said that there is the power to do in trust session recess appointments because there was an argument that the president lacked that power and uh however the court said that a recess of three days is not long enough for the president to exercise this power in order for the president to be surely able to exercise the power it has to last for at least 10 days this recess the concurring opinion said that there shouldn't be intrasession recess appointments there should only be intercession recess appointments and since these appointments by President Obama were intrasession recess appointments they were inherently invalid so all nine of them agreed that the nlrb actions here could be invalidated because they had three uh suspect appointees on it but their rationale were very different um and so that's the world in which we find ourselves and so I don't think the Supreme Court is going to revisit that case I going to I think they're going to treat that as as what we call Star decisis that it's already been it's firmly established the rules are clear and so if president Trump finds himself in a situation where the Senate takes a 10day or 10 or longer recess then he can exercise this power of recess appointment now that's you know call that the basic situation of the Senate agrees to put itself in the recess but what happens if the Senate does not want to go into recess but the house does in that case there's another provision of the Constitution it's uh the presidential adjournment Clause um sorry to be so technical but that's what these things hinge on and it says that if the houses disagree about the time of adjournment then the president has the power to send them in into recess for as long as he sees fit and that power uh is is one that has a check at the back end which is that there's another constitutional provision that says the Congress has to meet at least once a year so this is not the power the con the president is you know would not be if he used this presidential adjournment Clause it he would not be claiming the power to sort of like dismiss Congress he could just put them into a recess and uh there's a constitutional back stop for that now for for your viewers to understand this presidential adjournment Clause power has never been used however it is plainly in the Constitution it is plainly a power that the president possesses and I think we think my co-author and I and the center for renewing America more generally and our colleagues there we think that it's come time for the president to push back on this misshapen distorted confirmation process that's evolved out of you know out of recognition you know no re you can't be recognized anymore versus what the framers intended it's time and the separation of powers uh hurly Burley for the president to to use this power to push back so he can get back to something much more like the original confirmation process that was a lot shorter and a lot more reasonable well Jeff Clark it's such a pleasure to have had you on thank you thank you all for joining Jeff Clark and me on this episode of American thought leaders I'm your host Yan Kell [Music]