About Those Recess Cabinet Appointments…

I can’t help but laugh when I hear about Congress going on recess. Yes, they learned everything they needed to know about life in kindergarten. And yes, they act like they’re still there. So, the mental picture of congressional recess usually involves a playground, kickball, bullies and maybe some skinned knees.

More recently, congressional recess has ignited a new raging debate. Can a President choose people to fill cabinet positions while the Senate is in recess? How does that work when a whole bunch of people support a president and a different whole bunch of other people oppose the same president, so Senate agreement is nothing but a wish upon a rotunda?

Senatorial Functions

The Constitution is very clear about certain things. One such concept is the enumeration of governmental powers in general.

As far as a president’s appointments (like cabinet members), it is Article II, Section 2 of the Constitution that states, “and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States.”

So, it’s pretty clear the Senate has to approve of a President’s cabinet picks, and tradition calls for a simple majority vote to do so.

Cabinet Appointments if the Senate is Closed

The Constitution addresses recess periods too, and the language, also in Article II, Section 2, is equally clear.

“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The bottom line is if the Senate isn’t happy about a President’s cabinet picks, they have two choices. Vote no to the “advice and consent” part or go on recess to delay the debate and subsequent vote. However, the running-out-to-recess strategy only kicks the can down the road—the President can still get his or her cabinet picks, although temporarily.

If Things Get Really Ugly

There is a potential nuclear option of questionable constitutionality that may conceivably be used in a cabinet approval battle. Article II, Section 3 contains the following general presidential power.

“…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…”

While not specific to cabinet “advise and consent” discussions, and considering this clause seems to refer to disagreement between both houses (the Senate and the House of Representatives), perhaps some legal wrangling might bring Section 3 into play. It’s not hard to imagine how such a move might prove counterproductive. Putting 535 prideful blowhards in a forced timeout likely wouldn’t end well for anyone.