Trump pushes for recess appointments.

Plus, what are the downsides to some reforms?

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 14 minutes.

Reminder.

Every Friday, we release a members-only post. This week, we are doing one last piece on the election — our version of the post-mortems we are seeing all across the media, in which we’ll explore why Trump won, what the Democratic party failed to do, and which narratives held up (and which didn’t).

Bear with us.

In the last few weeks, we’ve had extraordinary growth unlike anything we’ve experienced over the last five years. It has been fun, gratifying, and exciting. But it has also come with a lot of customer service issues, which have overwhelmed our staff. We are all hands on deck (from our founder down to our interns) catching up on customer service requests, but our typical response rate of 48 hours or less might be a little delayed. We apologize in advance! Relatedly, we are now hiring for a customer service lead (and hiring for an assistant to the editor).

Quick hits.

1. President Joe Biden hosted President-elect Trump at the White House, where the two discussed the presidential transition of power, as well as the wars in Ukraine and Gaza. (The meeting)
2. CIA official Asif Rahman was arrested in Cambodia on charges of violating the Espionage Act for allegedly leaking classified documents about Israel’s preparations for a retaliatory strike on Iran. (The arrest)
3. The 12-month inflation rate was 2.6% in October, up 0.2% from the month prior. Housing and food prices drove the increase, according to the Bureau of Labor Statistics. (The report)
4. Special counsel Jack Smith and his team plan to resign before President-elect Trump’s inauguration in January. (The resignations)
5. The Pennsylvania Senate race between Sen. Bob Casey (D) and Republican David McCormick will go to an automatic recount. Counties must finish the recount by Nov. 26. (The recount)

Today's topic.

Recess appointments. On Sunday, President-elect Donald Trump tweeted that any Republican senator hoping to obtain the position of majority leader would have to approve of recess appointments for his cabinet nominees. Typically, nominees for Cabinet positions, executive offices, or high-level ambassadorships undergo a hearing where they are asked questions by members of the Senate who then vote on whether to confirm an appointee. Only a simple majority is needed for confirmation. 

However, Article II of the Constitution allows for "recess appointments," which were designed to prevent vacancies in the event the Senate is adjourned for an extended time. Presidents of both parties have used recess appointments to avoid confirmation hearings in the past, but the practice was widely curtailed after the Supreme Court's 2014 decision undoing President Obama's recess appointments to the National Labor Relations Board. Part of the court’s decision required Congress to be out of session for at least ten days before a president can make a recess appointment, and Senate leaders have recently used three-day recesses with pro forma sessions to block this process from taking place.

This week, President-elect Donald Trump has tapped a number of future cabinet members and high-level executive staff for positions within his incoming administration. However, several of Trump’s nominees — Gov. Kristi Noem (R-SD) for secretary of the Department of Homeland Security, Rep. Matt Gaetz (R-FL) for Attorney General, former Democratic Rep. Tulsi Gabbard (HI) for director of National Intelligence, and veteran and former Fox News anchor Pete Hegseth for Secretary of the Department of Defense — are controversial and likely to undergo a difficult confirmation process.

The new Congress will convene on January 3, 2025, and Trump will formally nominate his selections after he is sworn in on January 20. At that time, the Senate or House leader may call a recess; however, a recess of three days or more must be approved by a majority in each chamber. Therefore, in order to pass recess appointments, Trump needs a Senate leader willing to call a recess and both a Senate and House that will pass the request (Republicans will control both chambers in 2025).

On Wednesday, Sen. John Thune (R-SD) was elected Senate majority leader over Senators John Cornyn (R-TX) and Rick Scott (R-FL) in a secret ballot election among Senate Republicans. Trump surrogates Elon Musk, Charlie Kirk, and Vivek Ramswamy had pushed for Scott, but he was eliminated in the first round of voting. Thune has stated that the Senate must “quickly and decisively” confirm the president-elect’s nominees, adding “all options are on the table to make that happen, including recess appointments.”

Below, we’ll get into what the left and right think about recess appointments. Then I’ll give my take.

What the left is saying.

• The left opposes Trump’s push for recess appointments, arguing the move would be an abdication of the Senate’s oversight duty.
• Some suggest that Trump is using recess appointments to test senators’ loyalty.
• Others say the move highlights Trump’s authoritarian impulses. 

The Washington Post editorial board said “Senate Republicans should not surrender to Trump on appointments.”

“Mr. Trump wants opportunities to circumvent the Senate confirmation process even though Republicans will have a clear majority of seats — at least 52, according to the latest count — signaling his intention to elevate appointees whom even some Republicans cannot tolerate. Senators should refuse to squander their constitutional prerogatives in this way,” the board wrote. “In general, presidents should be able to assemble the executive branch teams they want. The bar for opposing a Cabinet nominee should be high. But it should not be insurmountable.”

“Mr. Trump tried to skirt the Senate confirmation process during his first term, when his party held a narrower majority. He routinely abused the Federal Vacancies Reform Act to install acting secretaries with dubious legal authority,” the board said. “Senators should fight his efforts to evade their scrutiny in his second term… Regardless of what the next Senate GOP leader has promised Mr. Trump, there will be ample opportunities for objections. Republicans as well as Democrats should take them.”

The Economist asked “why is Donald Trump keen to use ‘recess appointments’?”

“Mr Trump has previously threatened to oblige the Senate to go into recess. The constitution requires each house to seek the other’s permission to adjourn for more than three days. In 2020 Democratic obstruction compelled the Senate to stay in session so as to prevent Mr Trump from making recess appointments. Frustrated, he talked about exercising a never-before-used constitutional power that allows a president to force Congress to adjourn. He did not go through with it, and the maneuver might not have worked if he had tried it,” the authors wrote. “This time, too, it is not clear how serious Mr Trump is about using recess appointments.”

“Mr Trump may just be unwilling to wait for confirmation hearings to happen. He may also worry that some Republicans might refuse to confirm some of his appointees,” the authors added. “The Senate’s responsibility to confirm appointees is supposed to be a check on presidential power. By asking would-be leaders of the chamber to forgo that responsibility in some circumstances, Mr Trump may be indicating that he expects unquestioning loyalty.”

In The New York Times, Charlie Savage framed Trump’s push as an “early test of a radical second term.”

“The demand to weaken checks and balances and take for himself some of the legislative branch’s usual power underscored Mr. Trump’s authoritarian impulses. While there is no obvious legal obstacle to Mr. Trump’s request, it would be an extraordinary violation of constitutional norms,” Savage wrote. “There is no historical precedent for a deliberate and wholesale abandonment by the Senate of its function of deciding whether to confirm or reject the president’s choices to bestow with government power.”

“While previous presidents have occasionally made some recess appointments, none has ever tried to systematically bypass Senate approval to unilaterally fill their administrations. It remains to be seen whether Republican senators, fearful of Mr. Trump’s ability to end their careers by backing a primary challenger, will give up one of the most important powers and prerogatives of their office.”

What the right is saying.

• The right is mixed on the proposal, with many hesitant about the Senate voluntarily handing power to the president. 
• Some say recess appointments are a smart way to circumvent Democratic obstruction.
• Others note that relying on recess appointments could delay Trump’s agenda in different ways. 

National Review’s editors argued “Donald Trump doesn’t need recess appointments.”

“One can comprehend the president-elect’s desire to hit the ground running — especially given that, in our era of sprawling government, there are indeed too many positions that require confirmation. Nevertheless, his request is wholly inappropriate within the American system of government and ought to be rejected with prejudice,” the editors said. “The core purpose of our unique system of separated powers is to reduce the authority that any one person or faction enjoys within the federal apparatus. Were a prospective Senate majority leader to vow to help Trump get around this arrangement, he would not only be undermining that principle, but doing so by abdicating his own oath of office and weakening the institution that he had been selected to protect.”

“As president, Trump controls the executive branch. He has no power over the legislature. Republicans understood this in 2012, when they successfully sued to prevent Barack Obama from making illegal recess appointments to the National Labor Relations Board. They understood it in 2016, when they successfully blocked Obama from appointing Merrick Garland to the Supreme Court. They understood it in 2021, when they blocked President Biden from nominating Neera Tanden, David Chipman, and others to the executive branch. Nothing has changed since then, other than that the shoe — for now — is on the other foot.”

In The Wall Street Journal, Don McGahn wrote about “why Trump needs recess appointments.”

“During his first term, President Trump struggled to staff senior government posts. Some 1,200 jobs require Senate confirmation. The upper chamber moved extraordinarily slowly in processing nominations, which routinely took several months—or even years. The average length of a Senate confirmation process during Mr. Trump’s first term was more than twice as long as under President Reagan. As a result, much of the federal government wasn’t staffed by the president’s nominees,” McGahn said. “Without recess appointments, it is doubtful President Trump can fulfill his constitutional mandate to ensure that executive-branch officials are supporting the policies the people voted for.

“After his recent and decisive election victory, he asked the Senate to return to its longstanding tradition of taking recesses long enough for the president to make some recess appointments. This is a good idea,” McGahn wrote. “Returning to the longstanding tradition of recess appointments would ensure that every elected president is able to staff the government with senior officials who share his policy vision. It would reduce the extraordinary time demands on the Senate to process presidential nominations. It would prevent senators from gratuitously delaying nominations. And it would help ensure that the executive branch implements the policies the American people voted for.”

In The Washington Examiner, Ramsey Touchberry suggested “Trump’s demand for Senate recess appointments could undercut his agenda.”

“President-elect Donald Trump’s bid to shake up how the Senate confirms his Cabinet and other appointments has more potential to weaken his agenda rather than kick-start it” Touchberry said. “Being off of work for extended periods could undermine congressional Republicans’ stated objective of passing an ambitious legislative agenda within the first 100 days of Trump’s second-term presidency and the political message they’re ready to get to work for the country.

“Democrats could put up a fight to recessing, which only needs a simple majority, by flooding a recess resolution with endless amendments and debate. Republicans would need 60 votes to put an end to it and support from at least seven Democrats,” Touchberry wrote. “Perhaps most importantly, Senate Republicans already plan to jump-start the transition process when they take control on Jan. 3 so they’re ready to confirm nominees when Trump takes office on Jan. 20. This includes holding confirmation hearings and vetting individuals in the weeks between the new Congress and Trump entering the White House, further undercutting the argument for recess appointments.”

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

• I don’t think recess appointments are a grave threat to democracy.
• However, Trump’s recent nominees would struggle to be confirmed through a normal Senate process.
• It may end up being harder for Trump to place his nominees through recess appointments than the normal confirmation process.

24 hours ago, my take on this issue looked something like this: Trump’s demand for the Senate majority leader to support recess appointments is probably just a test of loyalty and not something that should prompt genuine alarm about the separation of powers between the executive and legislative branches. 

But after the past day’s reports about who Trump nominated for key posts, I see his call for recess appointments in a different light. 

I’ll address a few overarching points before getting into the specifics of Trump’s strategy. 

First, Democrats really don’t have much leverage. I understand the Trump team’s concerns that the minority party could delay the important work of filling Cabinet and other key positions in a timely manner through procedural obstructions. Senate Democrats already seem to be gearing up for a disrupt-at-every-turn strategy, so much so that some party members are questioning whether five-term Senator Dick Durbin (IL) has enough energy to lead the fight as the top Democrat on the Judiciary Committee. In that context, I get why Trump would want to move urgently. 

But remember, while Democrats can delay, there’s ultimately nothing they can do to stop Trump from getting his picks confirmed — as long as Republicans are behind him. During Trump’s first term (when Republicans started with 52 Senate seats), his entire cabinet was confirmed within the first 100 days (faster than Obama’s by one day). While Democrats did obstruct the process for some nominees, many others were held up simply because they needed to sort out their business interests with the Office of Government Ethics.

Second, I think writers on the right have made a stronger case against recess appointments than those on the left. Most left-leaning commentators framed Trump’s strategy as following “authoritarian impulses” or as a dangerous “power grab.” This is part of a trend with how the left criticizes Trump: overusing alarmist terms in a way that devalues them. It’s hard to see leveraging a process outlined in the Constitution (that other presidents before Trump have used regularly) as an “authoritarian takeover.” 

Instead, I find myself agreeing with writers like National Review’s editors, The Dispatch’s Chris Stirewalt, and Hot Air’s Ed Morrissey: Trump shouldn’t need recess appointments with 53 Republican-held seats in the Senate.

Trump should be able to staff the federal government with the people he thinks are best for the job — that’s just an extension of the democratic will of the people who elected him, and I’d say the same thing about any president. However, recess appointments are a way for a president to avoid a fundamental check on executive power, and in this case Trump is trying to avoid a check from his own party — which is alarming. 

When we wrote about Trump’s initial cabinet picks on Tuesday, I praised the president-elect for selecting respected, competent people like Susie Wiles, Lee Zeldin and Marco Rubio for key roles. Even picks like Stephen Miller and Tom Homan, whom I disagree with on approaches to immigration policy, are perfectly capable of enacting the governing agenda Trump campaigned on. Of these picks, I suspect the ones that require Senate confirmation to get it without much trouble.

But Trump’s latest picks suggest he might need recess appointments after all. 

Tulsi Gabbard is perhaps less controversial than Hegseth or Gaetz, but her foreign policy record is cause for legitimate concern. Immediately after the pick was announced, intelligence experts on the right and left criticized the pick, primarily on the grounds that she is too sympathetic to America’s adversaries. Personally, I’ve always found the most extreme allegations about Gabbard (that she’s a Russian agent or asset) to be laughable, and I respect her staunch anti-war stance. But I also have a hard time taking her seriously; after all, days after Putin invaded Ukraine and began ransacking towns and killing civilians, Gabbard is the woman who called for embracing the “spirit of aloha.” I expect some establishment Republican senators to balk at her nomination, and they should. 

Pete Hegseth will have an even harder time getting confirmed as Secretary of Defense. The pick makes sense as a move to shake up the national security establishment, but his inexperience is an issue for a post of this magnitude. I question the wisdom of nominating a Fox News host with little command experience as Secretary of Defense, even if there are some compelling reasons to put a combat veteran in that role. The Department of Defense has serious issues — wasteful spending, inventory issues, shaky leadership, and two major ongoing conflicts  — but a leader who rails against the political left as “domestic enemies,” says women shouldn’t serve in combat roles, and generally blames all of the military's problems on “wokeness” isn’t the right person to address the DoD’s biggest problems. Some Senate Republicans are already expressing doubt about the pick, and I think Hegseth is in for a bruising confirmation fight. 

Finally, Matt Gaetz is simply not a good choice for Attorney General. He reeks of ethics issues and sleazy behavior. In the midst of (still unproven) accusations that he had sex with an underaged girl, multiple members of Congress spoke on the record of Gaetz showing videos on the floor of Congress of women he had slept with and talking openly about drug-fueled sex parties. Even worse, a nonpartisan House ethics group was about to release an apparently damning report on Gaetz before he resigned yesterday, which prevented the report from coming to light.

Gaetz also lacks the qualifications we typically associate with a role like AG, although inexperience alone isn’t a strong reason to oppose his nomination. President John F. Kennedy appointed his 35-year-old brother, who had never argued a case in court at the time, for AG, and Robert F. Kennedy ended up having an effective tenure. I’m more skeptical of Gaetz as an AG pick because of the ethical concerns surrounding him, and because he does not appear to have the requisite support for Senate confirmation. 

A lot of smart people have suggested that Gaetz’s appointment is a ploy to either give him a graceful exit from Congress amid an ethics investigation or to feed him to the wolves so Trump can get his “real” pick for attorney general confirmed later. I have to say I find both ideas preposterous. Trump was investigated by his own FBI and DOJ during his first term, then Biden’s attorney general came for him after he left office. He wants to throw a grenade inside the DOJ and see what happens — that’s his governing style, for better or worse. He’s going to try earnestly to get Gaetz, Gabbard and Hegseth appointed, even if he has to use recess appointments to do it. 

Ironically, I think their nominations actually decrease the chances of Trump being able to get anyone through without Senate approval. Each of them, individually, is so objectionable to so many Republican members of Congress that I suspect some genuine bipartisan pushback is coming. Will all three get blocked? I doubt it. But I’d be shocked if all three made it through, too. John Thune (R-SD), the new Senate majority leader, has a long history of both opposing Trump and adhering to Senate traditions, and he said on Wednesday that he plans to approach the nomination process “the old-fashioned way.”

Furthermore, recess appointments require a recess, and any Senate adjournment of ten days or longer would need the consent of a majority in the House — that could be an even harder task than just confirming a nominee on a straight vote, considering Republicans’ already small House majority is growing smaller by the day (and considering how many enemies Gaetz has made in the lower chamber). More likely than not, Trump will push for a Senate recess, the Senate or the House will block it, and most (but not all) of Trump’s selections will be confirmed through the normal process.

That’s the way it should be, and I hope Thune and other congressional Republicans hold the line. 

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Your questions, answered.

Q: In a reader question, you had a couple of simple answers for how to get money out of politics: "Restricting members of Congress from being allowed to trade stocks and make active investments while in office, and prohibiting politicians from taking jobs as lobbyists or industry regulators after they leave office." Both sound good to me. But I'm wondering: can you think of any unintended consequences that these seemingly commonsense ideas might have?

— Julian in NYC

Tangle: This question is a helpful reminder that writing good policy is hard because commonsense ideas will always come with unexpected costs. That doesn’t mean that they’re not worth enacting, just that nothing ever comes for free. So, what are those costs?

Let’s start with forbidding members of Congress from trading stocks or making active investments. Obviously, this would disincentivize business-oriented people from running for Congress. Another drawback is that — if enforced correctly — this rule would make members of Congress pay less attention to the market when maybe being clued into it is helpful for drafting legislation. Lastly, it would invite corruption. If I’m a senator who can’t trade stocks and learns that a bill is likely to pass or will soon enter committee, I might want to tell my family, friends, or staff to make an investment for me. Either that would create new issues, or we’d have to make congressional staff unable to trade stocks as well (which would make the first two disincentives even costlier).

Next, prohibiting politicians from lobbying or regulatory positions after they leave office would prevent experts in legislation from joining firms that draft legislation and prevent experts in the different congressional committees from joining industry regulators. That knowledge drain would hurt lobbying firms and regulatory bodies, which do important work in government. Another possible side effect would be the replacement of salaried posts for Congressional retirees with stacked consultation fees that would be harder to make illegal and harder to track.

Is this an exhaustive list? No. Does it mean these reforms aren’t worth enacting? Not in my opinion, but it is definitely helpful to think about these consequences before pushing for these reforms so we can anticipate the next problems we’ll have to solve.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to our inbox) or fill out this form.

Under the radar.

Five months after New York Gov. Kathy Hochul (D) paused a plan to implement a congestion toll on motorists entering Manhattan below 60th Street, the governor announced she is reviving the program. The new plan will reduce the fee that most drivers will pay to enter Midtown and Lower Manhattan from $15 to $9, but likely without the extended environmental-review process that mired the original effort in delays. Hochul is fast-tracking the plan, putting it before the Metropolitan Transportation Authority board for approval next week, and it could go into effect before President-elect Trump takes office in January. Gothamist has the story.

Numbers.

• 1,200-1,400. The approximate number of positions in the executive branch that require Senate confirmation, according to a 2012 estimate by the Congressional Research Service. 
• 139. The number of recess appointments made by President Bill Clinton. 
• 171. The number of recess appointments made by President George W. Bush.
• 32. The number of recess appointments made by President Barack Obama.  
• 0. The number of recess appointments made by President Trump and President Joe Biden during their terms.
• 97. The number of days between Donald Trump’s first inauguration and when his full cabinet was confirmed by the Senate. 
• 1. The median number of days between the official nomination of a presidential cabinet member and a full Senate vote on their nomination for the four presidential administrations preceding Trump’s first term.
• 3, 1, and 1. The number of Obama, Bush, and Clinton cabinet nominees, respectively, who failed to be confirmed by the Senate. 
• 25. The median number of days between the official nomination of Trump’s cabinet members and a full Senate vote on their nomination during Trump’s first term. 
• 1. The number of Trump’s first-term cabinet nominees who failed to be confirmed by the Senate. 

The extras.

• One year ago today we covered the Rashida Tlaib (D-MI) censure.
• The most clicked link in yesterday’s newsletter was the link to our job description for a Customer Service Lead.
• Nothing to do with politics: 13 escaped monkeys are still on the loose in South Carolina.
• Yesterday’s survey: 3,288 readers responded to our survey asking about mass deportations in Trump’s upcoming term with 56% responding with some level of concern. “Stick to deporting criminals and those who have already received papers to leave. Enforce laws already on the books such as those overstaying visas. Finish the wall,” one respondent said.

Have a nice day.

As a child, Sarah Bryce was a patient at Boston Children’s Hospital. Now, she works at the hospital as the program manager of culinary experiences, where she creates exciting meals for children — usually between the ages of four and 16 — while they undergo treatment. Recently, Bryce hosted a pickle party for Emerson Bayse, an eight-year-old heart transplant candidate. Due to fluid restrictions, Bayse has a craving for the salty dill spears. So, Bryce made Bayse’s pickle-making dreams into a reality. Today has the story.

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