American Thought Leaders - Recess Appointments: Trump’s Way to Bypass Senate Impasse?—Jeff Clark

Episode Date: November 26, 2024

As part of our special series on the U.S. presidential transition period, I’m sitting down today with Jeff Clark, an assistant attorney general at the Department of Justice during the first 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 precedents for them? And how could they impact the effectiveness of this coming administration?Views expressed in this video are opinions of the host and the guest, and do not necessarily reflect the views of The Epoch Times.

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 U.S. 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 precedents for them? And how could they impact the effectiveness of this coming administration? This is American Thought Leaders, and I'm Jan Jekielek. Jeff Clark, such a pleasure to have you on American Thought Leaders. Thank you, Jan. 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 and into other positions. So can you 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 pushback on that. But also, it has a political dimension to it. And so the recess appointments clause is the source of the

power that we're talking about. And so it's in Article II, Section II, Clause 3 of the Constitution. And it gives the power, when Congress is 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 any department, any agency, and then that person can begin to serve once they receive a piece of paper called a commission. And normally, the appointments clause, the base

appointments clause, is in Article 2, Section 2, Clause 2, and it says that the president can appoint someone, and then they go into office if the Senate confirms them. And so that's a joint process with the Senate. So the one power is one where it's 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 two powers. And the dispute is coming up because the senators are very interested, many of them anyway, 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 attempt to try to influence the process. Before we continue, I want to learn a little bit more about you. And of course, you were part of Trump 45 very prominently. Yeah, tell me about your background. DAVID SHULTZ, JR.: Sure. And I was also part of Bush 43.

So I was born in Philadelphia to parents who were lower middle class, but I thought we were middle middle class until I went off to Harvard to study economics and Russian and Soviet history, where, and I know this is a subject near and dear to your heart, I spent a lot of time studying the history of communism in Russia. And then I did a thesis about the rise of Leninism. And, you know, I also am part Lithuanian, and so, you know, I have a lot of relatives who would teach me about the evils of communism. And so that's one reason why I studied in that area.

But my primary concentration actually was in economics, so I spent a lot of time with statistics and models and microeconomics and macroeconomics. And then I went off to law school at Georgetown, and I did very well. And I clerked for a prominent federal judge, Judge Danny Boggs. And then I went to work at the prominent international law firm of Kirkland & Ellis, where I, just before I was about to become partner, I went over to the Bush 43 administration as one of the youngest deputy assistant attorney generals that there'd ever been. And I ran two sections, the appellate section of the Environment and Natural Resources Division. So I worked on all the cases that went to the Supreme Court for four years from 2001 to 2005.

I started a few weeks before 9-11, so I was there in the department when we got the evacuation order as a result of the different attacks occurring around the D.C. area. And then I also ran this other section, which put me in touch with an area of law that I had never encountered before, all of the law about the Indian tribes in America, so the Native Americans, their treaties, the statutes that govern them, the Supreme Court cases. And so I did that again for four years, 2001 to 2005. I went back to Kirkland and Ellis as a partner, doing a lot of appellate litigation. Before I went into the administration and then thereafter I grew it, I became especially an administrative law expert.

I worked in litigating against all kinds of government agencies, just like when I was in the Bush administration, I defended government agencies from litigation. I did patent things. I did communications things. I worked on bankruptcy cases. I worked on challenges to EPA rulemakings. I worked on challenges to Interior Department actions. I worked on Energy Department matters. I mean, you name it. I had a very broad administrative practice. And then in 2017, I was asked to become an assistant attorney general, which is the Senate-confirmed spot running one of the seven litigating divisions at the Justice Department. And I accepted that, and I went up for a confirmation hearing,

had some testy exchanges with Senator Whitehouse and Senator Al Franken, the Saturday Night Live figure, and but ultimately even though they held me up for quite a long time I got confirmed with bipartisan support and I was confirmed in the middle of October of 2018 and then I got sworn in on November 1st and began my service in the Trump administration running a division of about 400 lawyers at the Justice Department and countless support staff. And then in September of 2020, I was the only one of the Assistant Attorney Generals tapped to run a second division, which I ran

simultaneously the civil division, and the civil division is a thousand lawyers. So by the time I left nearing the end of the Trump administration before the Biden inauguration, there were 1,400 lawyers and then, you know, a whole slew of other civil servants under me, paralegals, secretaries, and other administrators. And I resigned on January 14, six days before the inauguration. And then ultimately, I wound up at my current think tank, the Center for Renewing America, where

I work with many excellent people. And it's headed up by Russ Vogt, who was my colleague in the Trump administration. He was the director of OMB. And I think one reason why we work together is because a lot of what I did was defending Trump administration regulations. And the Office of Management and Budget reviews all of the regulations that go through all of the departments and agencies of the federal government. So that's a thumbnail.

But you don't associate the Trump administration with adding new regulations, though, right? No. I mean, we were trying to take down more regulations than we put in place. And indeed, there was an executive order to that effect. And we were very successful in deregulating.

But if you're going to repeal a policy that was stressing the American people, because regulations are often a kind of hidden form of tax, and we'll call them regulatory taxes. If you're reducing those regulatory taxes, you have to put out new rulemaking that either repeals or amends an existing rulemaking. So that process then is kind of shepherded through by the Office of Management and Budget. In particular, they have an official called, you know, the head of OIRA. And OIRA is the sort of

component of OMB that focuses on regulatory issues. Well, so let's jump back to, you know, recess appointments. Why do you think that President Trump is talking about this prominently at this moment? I think because he is seeing that 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 gotchas. It's become an opportunity to slow the process down. Therefore, it's become a process to resist President Trump. He can't get his team fully in place until, especially since we're talking about more than 1,000 positions,

it's a big bottleneck to go through the Senate on each of those. 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 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 even preside over them if he wanted to. And if he didn't preside, then it was the vice president 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 process was really intended to be more extensive, it should have been more extensive at a time when there were far fewer government departments 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 would think, right, you would have the luxury to go on maybe for several days, a week, multiple weeks to have the Senate review the nominees, but 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 III judiciary for lifetime appointments, these things sailed through relatively quickly. was 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.

That's something that, to have it get to what we're seeing nowadays in the modern era, where you have to fill out a very long questionnaire. And I can tell you, I filled out this questionnaire. It took many days. For instance, I had to research and list all of the Supreme Court cases I've worked on, which is quite a few over the years. And we're talking about my nomination process in 2017, right? So now, if I were lucky enough to be nominated for something, it's all the things that I worked on between 2018 and 2021. I'd have to research those and put those and compile those into a list. It'd take a long time to prepare this paperwork.

The paperwork goes over. Then they have to schedule a confirmation hearing. And then you prepare for it. You go to it. You get questioned by each of the members, and then they ask you after that questions for the record, or what people call QFERS. That takes a while to prepare the follow-up questions from the hearing. Then they have to schedule a business committee meeting on you, and they take a vote from the committee, and then they either report you out favorably

or unfavorably, and then you get a cloture 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 and 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 drag the process down and make it so that there are very many qualified people,

excellent people, who if the process were more streamlined, 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, they'll say, no thanks. I don't want to be drug 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 from the time that the papers went over to the Senate to the

time that I actually started to serve. So, you know, the recess appointments clause power, it exists in the Constitution. Hundreds 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 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 an efficiency expert.

Well, so how would you react to someone saying, well, when the republic was young, there was a lot that wasn't yet known about what would happen. And indeed, some of these more advanced procedures were developed in order to be able to protect the American people from bad appointments. Because presumably that would be the argument, right? And so we should follow that process. So Jan, I would push back on that, having looked at the history, right? I mean,

President Washington's initial cabinet includes people like Thomas Jefferson, right? And so there were excellent choices made. The reason why the process evolved was not to try to create more excellent appointees. And in fact, for 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 such filled with red tape, I think it's 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 confirmation messes, and it led to a book actually by a Harvard law professor called The Confirmation Mess, is with Judge Bork.

So let me describe Judge Bork's career to you. So Judge Bork is an eminent law professor. He writes major books and works about how to reform antitrust law, which is very famous. He's at the Yale Law School. He teaches generations of students about constitutional law. He's a constitutional law expert. He gets tapped and he's put on the DC Circuit Court of Appeals, which does a lot of reviewing of government regulations, which, as I said, I'm an expert in.

And anyone who's an expert in that area of law becomes an expert in the DC Circuit and how it operates. He serves on that court with distinction. 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. And it's turned into a verb, Jan. The verb is borked. So Judge Bork, or anyone that the, you know, especially a conservative president, nominates to a court, 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 Bork, they, you know, it's called Borking. And 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 find that they took bribes, or you find that they lack any qualifications for office, or they've been involved in just kind of like a mind run of scandals or something. 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, if they want that power, they have to run for the presidency and win it. Otherwise, they should be deferring to 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 Judge Bork, an eminent constitutional scholar from the Supreme Court, they tried the same tactics

with a sexual harassment 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 these allegations of Christine Blasey Ford. And these, you know, again, the process is not designed for this. It's become the kind of thing that also, I think, puts the United States in a bad light. It, you know, makes these confirmation hearings into, you know, puts the United States in a bad light. It makes these confirmation hearings into laughingstocks all around the world. And our framers did not foresee that system, did not want that system. And in the separation of powers fights between the branches,

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. So you wrote a brief on this with Anthony Licata. Indeed, this is what caught my attention because I was very curious about this recess appointments approach. And then 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 pushback, both from liberal constitutional scholars and even from, I'll call them mind-run, you know, conservative scholars. We're conservative think tankers who don't want the president to try to put the confirmation process back into its original box, into its original historical moorings. They think that these constitutional long confirmation process hearings with documents coming in before and televised hearings and documents coming in afterwards and then debates that are also televised. I've gone to look at what happened inside the business committee

meeting about me, for instance, and then any floor debate about it. All these things, they seem to like that process. And in part, I think they like that process because they think that they like to use it when they're out of power, right? And that Democrat nominees for executive branch offices can be put on the spot. I think that my perspective on it with young Tony, who is a rising legal superstar and a very smart guy, very studied and learned in the law, 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 misshapen additions and kind of 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 the Secretary of Agriculture, could be the ambassador to NATO. And then, you know, without a lot to do, that person can begin serving. There is 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 at issue. And there are two kinds of recess. One kind of recess is an inter-session recess, and the other kind is an intra-session recess. So So, Congress has two sessions in each Congress. They each last a year. So, the break between the prior Congress and the first year of the new Congress, there's an inter-session recess there. And then, between the first year and the second year, there can be an inter-session recess. But if you were to recess appoint someone during a recess, like, you know, say in February after the session for the new year has already started, that's an intra-session 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 the first year 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 Knoll-Canning. It's NLRB versus Knoll-Canning. And in that case, the President Obama was frustrated by the fact that the National Labor Relations Board 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 agency proceeds by doing adjudications, like each thing it does is its own individual case. And so they produced some decisions that were adverse to this company, Knoll Canning, in the labor law area.

And Knoll 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, which give the president this opportunity to recess a point, 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 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 Justice Breyer, who's now not on the court anymore, the concurring opinion now that was written by Justice Scalia, who now, you know, sadly is no longer with us. Justice Breyer 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 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

intra-session recess appointments. There should only be inter-session recess appointments. And since these appointments by President Obama were intra-session recess appointments, they were inherently invalid. So all nine of them agreed that the NLRB actions here could be invalidated because they had three suspect appointees on it,

but their rationales were very different. 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 think they're going to treat that as what we call stare 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 10-day 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 into 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 the Presidential Adjournment Clause. 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 into recess for as long as he sees fit. And that power 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 president would not be, if he used this presidential adjournment clause, he would not be claiming the power to sort of like dismiss Congress.

He could just put them into a recess and there's a constitutional backstop for that. Now 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 recognition. You can't be recognized anymore versus what the framers intended.

It's time in the separation of powers, hurly burly, for the president to use this power to push back so we can get back to something much more like the original confirmation process that was a lot shorter and a lot more reasonable. How can this process be used potentially against the president? Well, I don't think it can be used against the president because he has recess appointment power and he has presidential adjournment power

if there's a disagreement. Those who are arguing to the contrary are making some hyper-technical arguments that try to say functionally that the president shouldn't have this power, that it's unwise for him to exercise it, that the Senate could easily defeat the power by deciding that, and this argument really makes no sense to me, that as long as the Senate decides to stay in session, they're not actually expressing a view of whether to take a recess or not. I don't think the courts would remotely look at it that way. And in any event, we've done a deep dive on the history of these clauses, it turns out that there are many

state constitutions going back to the time of our framing that had similar clauses in them. We call those gubernatorial adjournment clauses. So if the two houses of the state legislature disagreed about taking a recess, the governor of that state could decide to send them into recess. Some states, it's like our federal constitution for as long as that governor sees fit. Other times, for instance, one state constitution we found had a four-month limit in it. You know, the precise way in which they execute this concept varies, but the basic idea that the governor was the tiebreaker, he decides, and it's not for the courts to second-guess that,

they'll say that it's a second guess that, they'll say that it's a political question. And they'll say that a fight between two houses in the state legislature is also a political question. And so the governors clearly have this power, they need this power. So those who are arguing that this is a, you know, kind of a non-power are wrong. The framers thought that this was an important power. And indeed, Jan, it's even older than that, right? It's not just like this was drawn from state constitutions that the framers knew about because they were adopted 10, 20 years before. This is a power that goes all the way back to the English king. The English king had the power, you know, going back centuries to dissolve parliament or to prorogue parliament.

So the framers, prorogue means to put it into recess, essentially. And the framers, they did not give the president the power to dissolve Congress. We have three separate branches of government, whereas in England, as you might know, under their unwritten constitution, their legislative branch and their executive branch are fused together, right, especially in their modern system. So the... Much like the Canadian system. Much like the Canadian system. So, you know, the prime minister is a member of parliament, right, and he comes out of parliament. And in the U.S. system, that's not true. The president is entirely separate from Congress. And so the framers wanted a Congress that continued to exist and that the

president could not disrupt. And that avoids a lot of the problems in English history, because in English history, if the king didn't like what the Parliament was saying, and sort of therefore is trying to override the will of the people at some level, he would just say, go home, like, get out of here. And the framers didn't want that system, right? They wanted the three branches to be pushing back on each other in order to preserve liberty through that system of checks and balances and what I called the hurly-burly. But what they did decide is that the president did need this power or some analog to it to prorog the Congress. And then they limited it further. It's not just that like the English king could do. He could just say, all right, take a month breather, and then I'll do some things I

want to do while you guys are out of session. They said that he only has this power to essentially prorog Congress if there's a disagreement between the two houses. So in America, we have a bicameral legislature, right? We have a Senate, the upper house, and we have the House of Representatives, the lower house. Only in a situation in which they disagree does the president have this adjournment power, which is the analog, but in a more limited form of this power that goes back to the English king. But those who are pushing back on this and trying to say that there is no presidential adjournment clause or we should ignore it, they're ignoring this centuries-long history. And they're ignoring the fact that the framers wanted to confer this power on the president,

and they thought very carefully about its implications. They put limits on it so that it was a power that makes more sense. It's part of our republic. It's part of our, you know, what the Democrats call our democracy. What do you call it? I call it the republic, because I think that's a better description. But you know, functionally in the minds of the average American, because of how our education system works and the fact that there's been a lot of death of civics

education and of teaching people about the Constitution, I'm fine in a practical sense with referring to it as a democracy, because our democracy is in the form of a republic. But if I were teaching a political science class or a law class, to my mind, a democracy is much more like a direct democracy, where it's like Athens, and all of the relevant, enfranchised voters are deciding individual questions. But that's not really a workable system of government

for a country of hundreds of millions of people. And clearly the framers imagined that eventually through Manifest Destiny we would expand from coast to coast with the addition of new states. And so we have a Republican form of government, as the Constitution refers to it in Article 4. And that means that the people elect the members of Congress. And then those members of Congress, and then those members of Congress represent their interests, and they pass laws, and those laws are executed by a president of the United States who's in a separate branch of government. And then when there are conflicts between those two branches, and when there are people

who disagree with government statutes or government regulations, they can challenge them in the courts. And then the third branch, the courts, will adjudicate those disputes. So let me game this out. So if both houses decided to, if all of Congress decided that they would not go into recess? Then the president does not, in that scenario, have recess appointment power. And he also does not have presidential adjournment clause power because the two houses are in agreement. And so the president can only send the two houses into recess

if they disagree with each other. And then he can exercise recess appointment power. Another scenario is the two houses could agree to go into a 10-day plus recess. And when they do that, he also has recess appointment clause power. So two scenarios to have recess appointment clause power. One involves this presidential adjournment clause in the case of disagreement between the two houses. The other one is if the two houses agree to go into a recess of 10 days plus. That's interesting because that would send a signal, you know, your latter example would send a signal that we trust you to make these appointments, something like that. Yes. The other option would send the opposite message,

presumably. Yeah, it would mean that one of the houses did not want to allow the president to more quickly get his team up and running. Practically speaking, what do you expect will happen? Well, I think that I don't want to prejudge any decision by the president about how to use his constitutional powers. Our point is just to show the president that he has the option. And the other point to recognize, right, and the framers were all on top of these kinds of things. They spent a lot of time thinking about the structure of government to get it right so that in the fights between the branches, right, or the disagreements between the

branches, each of the branches had their own tools to try to use as leverage in negotiations to reach, you know, a particular result that they were trying to drive to. And so this is a tool that the president has. It gives him leverage in discussions with probably in our current situation and make up leverage with the Senate in order to negotiate to a good place in terms of getting his team through the Senate confirmation process. Or you could imagine a whole range of deals, right? That the president could say, this is just theoretical, right?

I'm not going to use this power, but I really want to make sure these nominees are confirmed. If you'll agree to bring them up quickly and confirm them, then I don't need to try to use this power for the first time. Alternatively, right, he could decide that there's some category of people that I'm going to recess appoint, and the other ones I'm going to send up for you, the Senate, to confirm. The other thing to understand, Jan, is this has been traditionally how the president has used the power, especially in the modern era. If he uses the recess appointment clause power, he often also uses the base appointment clause power. So here's how that works. The president says, I'm going to recess appoint John Smith to be Secretary of Commerce.

And then that person can begin serving immediately as soon as they receive this document called the commission, which is very famous because the fight about whether somebody got a commission or not is what this famous case that probably a lot of people have heard about called Marbury versus Madison is about. It's about Marbury saying, I'm owed a commission. Where's my commission? And he sues to get it as things shift into the Jefferson administration. And then the president also sends up nomination documents for confirmation to the Senate. And so he says, I'm putting this person in. They can start working now and they can serve until the end of the next session. documents for confirmation to the Senate. And so he says, I'm putting this person in,

they can start working now, and they can serve until the end of the next session. But I also want to know whether you think this person should be confirmed. And then you can proceed on this separate track, or what some would say is the ordinary track of Senate confirmation. And then certainly, if that person is not confirmed, if John Smith for the Secretary of Commerce is not confirmed, then his commission expires at the end of the next session. Whereas if you get confirmed, the commission does not expire. And so that person can serve for as long as the president wants to leave them in office. And indeed, people who get commissions from one president,

I'll give you an example. There are people who served in the Reagan administration who were held over to the Bush 41 administration. So they get a commission from President Reagan. President Bush is perfectly happy with them continuing to serve. He doesn't issue a new commission to them. Their commission doesn't expire.

He just lets them continue in office. And then they either resign before, in this case, as we know, President Clinton came in, before President Clinton came in. Or if the person wants to engage in some kind of fight, they're fired, potentially, by President Clinton, because President Clinton wants to put his own person in, which is the way our system works. So the point to understand is that the base Senate confirmation commissions that come

out of that, they don't expire, right? They might practically expire when the presidency changes party hands and presidential hands. Not all of the Reagan people were held over into the Bush 41 administration, for instance. But recess appointments, they have an expiration date stamped on them. They cannot go past the next session of the Congress. And so if both methods are used simultaneously to serve things up for the Senate and to give them a say, then, you know, that's when that expiration date comes into effect. Fascinating. But couldn't a hypothetical president,

let's say they were facing a very hostile Senate, for example, couldn't they just, if they get the recess through their recess power, couldn't they just make the recess appointment and then just make the same recess appointment for the next session? No. No, but there is a way actually to extend a recess appointment, and I'll give you an example, and that's under a statute that Congress passed. So they passed a statute in 1998 called the Federal Vacancy Reform Act, the FVRA, and that And that statute allows someone who has met certain criteria to be named an acting official in that department or agency or whatever the office is for a base period of 210 days.

And then there are certain ways for it to be extended. So someone could get a recess appointment and as that's expiring they could then be given an FVRA appointment as acting. So you could get the two years of the recess appointment plus the 210 days. So what's the practical example of where that's happened in the past? President Bush 43, he appointed Eugene Scalia, Justice Scalia's son, to be the solicitor of labor. And so as his appointment was coming to an end, President Bush moved him into a senior executive service job for a short time. And then he named him as the acting solicitor of labor. So Eugene Scalia had and then Eugene Scalia would go on to become the

secretary of labor in the Trump administration, right? But in the Bush 43 administration, Gene Scalia serves as a recess appointee for a period, and then he serves for another period tacked on to that under the Federal Vacancy Reform Act. So, you know, the president has not just a constitutional head of power under the recess appointment clause, he has this FBRA head of power to name actings as well. Well, you just led into my next question because this is exactly what I was thinking. What about these acting roles that, you know, we heard about so often in Trump 45? So as an example, in the Trump administration, right, the first AG, the first attorney general

that President Trump nominated and who was confirmed by the Senate was Jeff Sessions, right, former senator from Alabama. So he serves, and then in 2018, just a few weeks actually after I started and after I had my first kind of onboarding meeting with him, President Trump decided that he wanted a different attorney general. And so I remember being at the farewell gathering that we had up in the attorney general's conference room

and then seeing him get into the black set of SUVs and being driven out of the big courtyard inside Maine Justice. And then President Trump named the chief of staff to Jeff Sessions, Matt Whitaker, who's just been named by President Trump, by the way, as the ambassador to NATO, as the acting attorney general. And actually, there was litigation about that. There were, in particular, criminal defendants who said that they were being convicted

under the leadership of an acting attorney general who they didn't think was validly appointed. Those challenges actually were all rejected, and this office inside the Justice Department, a very important office called the Office of Legal Counsel, they were called on to write an opinion about can Matt Whitaker serve as acting Attorney General? And one interesting thing to note about Matt Whitaker is that he was not Senate confirmed at the time. He'd been Senate confirmed back in Bush 43 as the US Attorney from Iowa, but in the Trump first term he was not Senate confirmed. He didn't hold a

Senate confirmed office. But the Office of Legal Counsel, going back in the history, saw that there had been many examples of individuals who were not Senate confirmed who were tapped to serve as acting Attorney Generals in particular or acting other cabinet members. So this this power to use actings is also a long-standing power that the president has had and now unlike in the earlier phase, right, there was nothing like this Federal Vacancies Reform Act, which having spent a lot of time with it, I can tell you is an extremely complicated statute, is that wasn't on the field before 1998. But now it is, but it works as I described to you. So if there was someone who was

either appointed by President Trump and someone who was either appointed by President Trump and Senate confirmed or recess appointed by President Trump, their tenure could be extended by at least 210 days by this Federal Vacancy Reform Act. So, I mean, it seems like there's just a lot of opportunities here for the President to be able to enact his vision for America. Yes. Yes. That's fair. And so in the previous Trump administration, he

encountered a lot of resistance. You feel like that type of resistance is possible this time around? Well, I mean, everything depends on who is actually nominated and confirmed or who is recess-appointed. And you can't foresee all of the circumstances in which particular officials, once they're vested with that power, might disagree with President Trump.

But I can tell you that my vision for what someone who receives a commission from the president to serve in a high office should do, they should give the president their best advice. And indeed, there's a separate clause in the Constitution. It's called the Opinion Clause. And it gives the president the power to ask any of these so-called principal officers to call for their opinion in writing. And what's the purpose of this? Of course, the president can have discussions with people, right?

But if you really want to solidify what they think, you can make them, if you're the president, reduce it to writing. And then, you know, it really becomes a document that will eventually come out in history, right? It will eventually go to the National Archives. And the president can use this device also, right? Not only can he study what they said, he doesn't have to rely just on the memory of what was said in an oral meeting or on a telephone call or something. And so if the president is getting this candid advice, it's reduced to a memo form, or if it's provided by telephone call or these days video call or, you know, those things happen in the situation room, for instance, these days sometimes, or just in an Oval Office meeting or in some other part of the executive branch of meeting where the president's there.

Then, you know, the president hears, say, let's say it's a cabinet member, hears from like cabinet member X, and his view might be different than cabinet member X. And, you know, they can have a frank exchange of views, and then the president makes a decision. And if the cabinet, this hypothetical cabinet officer, you know, he has a number of choices. And there's a famous book that is about corporate law, but I think it applies to this model as well. There are three things. There's voice, there's exit, and there's loyalty. So the cabinet official will have exercised voice by saying what his views are to the president. The president decides to agree or disagree. There's loyalty, which is the president makes a decision even if you disagree with it, and you say, alright, well I'll carry it out because you're the constitutional official who heads up the branch, you're my superior officer, that's what I'll do. Or, there's exit, and you can say, Mr. President, I disagree with you to such an extent

that I cannot actually carry this decision out. Now, in the modern government, oftentimes, you know, people will do what I think is the dishonorable thing and they'll go running to the press or they'll go leaking to the press that they disagreed with the president. I think that is entirely dishonorable. I don't think the framers thought that that was the way anyone should behave. They take an oath to the Constitution, and that Constitution has in it a structure where the president is the head of the executive branch. They're not. They're an official in it that he's chosen. They all serve at the pleasure of the president, and therefore, if they disagree, they should quietly exit. And that's the way the system should work. It shouldn't work in

this way where we have these noisy public disagreements between people who've been appointed by the president. And so I hope that the second term of the Trump administration will see fewer people engage in this kind of public backstabbing of the president. And we didn't see any of that, for instance, in the Biden administration. You know, Jan, do you know of any situations in which there was a cabinet official, you know, who ran running to The New York Times like, I disagree with Biden about this? Like, you know, no. But, you know, if you're a President Trump for some reason, you know, there are people who they want to get inside, it seems, and they want to resist him. And I'm not attaching that label to any particular person in the new Trump term. I hope that there are zero of them, right? But there are definitely

examples of this. And they made President Trump very angry. And as we know, famously, he would vent against them on Twitter, now X. Well, I mean, this has been an absolutely fascinating deep dive into the question of recess appointments and commissions, frankly. Any final thoughts as we finish? So, you know, the Federalist Papers have a discussion of these three things, right? Like, what is the difference between these things? So there's the presidential nomination, then there's, you know, oftentimes a Senate confirmation, right? And then there's the presidential nomination. Then there's oftentimes a Senate confirmation. And then there's the commission. What is the commission? It's the evidence of the fact that you ran the gauntlet of the process. And if it's a recess appointment, there is no Senate gauntlet.

It's just the president decided to do it. And you get this commission. And that commission is the legal document that establishes that you have the right and privilege to exercise that office. So I have a presidential commission from President Trump up on my wall. And a lot of people think these kinds of things are quaint, but no, they're legal documents with operative effect. And indeed, you know, the first major case in which the Supreme Court established that it could exercise judicial review and decide whether what a president did or what the Congress did was consistent with the Constitution or not is this case Marbury versus Madison. And what is it a fight about? It's a fight about a commission. And so at some level, you know, what's old is new again.

And now we're having a fight actually, or we might have a fight, or to be more gentle about it, might have an interbranch conflict or disagreement about this power that the president has that clearly exists but has never been used, the presidential adjournment clause. 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, Jan Jekielek.