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Former Assistant Attorney under President Trump, Jeff Clark, explains just how screwed up the Senate Confirmation Process for Presidentail Appointees has become since the founding and how and why President Trump can and should use his LEGAL Constitutional Authority to force Recess Appointments. (See the Transcript Below)"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. . . . 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. I'm 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 (both) into recess for as long as he sees fit."
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The Power and Limits of Recess Appointments： Jeff Clark
[00:00:01:04] John Killick: 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.
[00:00:23:25] John Killick: 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 precedents for them, and how could they impact the effectiveness of this coming administration? This is American thought leaders, and I'm Yanya Kilic. Jeff Clark, such a pleasure to have you on American Thought Leaders.
[00:01:00:20] Jeff Clark: Thank you, John. It's good to be here. I enjoy your show.
[00:01:03:19] John Killick: 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 you explain to me what this is all about and why he might be talking about that so prominently? Sure.
[00:01:22:21] Jeff Clark: 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 the source of the power that we're talking about. And so it's in article 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 commission. And normally the Appointments clause, the base appointments clause is in article two, section two, clause two. And it says that the president can appoint someone and then they go into office if 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 cooperative power essentially with the Senate. Although the president is 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.
[00:03:43:23] John Killick: Um, why do you think that President Trump is talking about this prominently at this moment?
[00:03:50:24] Jeff Clark: I think because he 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 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, 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 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 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.
[00:05:17:25] Jeff Clark: 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, you know, 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 three judiciary for lifetime appointments. These things, you know, sailed through, sailed through relatively quickly.
[00:06:30:12] Jeff Clark: And the check was, you know, 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 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 takes 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, you get questioned by each of the members, and then they ask you after that questions for the record, or what people call chauffeurs. 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 have a they take a vote from the committee, and then they either report to 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.
[00:07:41:14] Jeff Clark: 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 make it so that there are very many qualified people, you know, excellent people who, you know, 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, well, we take an appointment, you know, they'll say, you know, no thanks. Right. I don't want to be dragged 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 that the recess appointments clause power, it exists. 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 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.
[00:08:51:00] John Killick: 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, some of these, you know, more advanced procedures were developed in order to be able to protect the American people from bad appointments because and that I presumably that's what that would be the argument. Right. And so we should follow that process.
[00:09:15:24] Jeff Clark: So, John, I would push back on that. Having looked at the history. Right. I mean, President Washington's initial cabinet includes, you know, people like Thomas Jefferson. Right. And so, you know, there were excellent choices made. The reason why the process evolved was not, you know, 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, you know, such a, 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 Confirmation masses. 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, 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. And it's turned into a verb, Jan, the verb is borked.
[00:10:33:04] Speaker1: 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 president, the constitutional framers, did not imagine borking. They did not want balking. 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 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 mine 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, 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 balking system in place. And the Democrats used the balking system not only to block, uh, Judge Bork, uh, an eminent constitutional scholar from the Supreme Court.
[00:12:02:05] Jeff Clark They they tried the same tactics, you know, with a 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 these allegations of Christine Blasey Ford and these, you know, the 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 it, you know, makes these confirmation hearings into, you know, laughing stocks all around the world. And, you know, 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.
[00:13:14:15] John Killick: 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 Licata. 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 a 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.
[00:13:44:23] Jeff Clark: Well, I think it's because there's a lot of pushback, both from liberal constitutional scholars and even from, I'll call them mine. You know, conservative scholars or 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, you know, constitutional, uh, long confirmation process, hearings with, you know, 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, you know, what happened inside the business committee meeting about me, for instance. And then, you know, any floor debate about it. All these things, um, 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 Democrat nominees for executive branch offices can be put on the spot. I think that that my perspective on it with, with young Tony, who is, you know, a rising legal superstar and, you know, very smart guy, very studied in the in the 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, you know, misshapen additions and kind of, uh, overgrowths that have happened since the Republic started. And that's why we wrote the paper.
[00:15:30:26] John Killick: Why don't you give me a picture of what you're arguing?
[00:15:33:17] Jeff Clark: 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 of 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 intersession recess. And the other kind is an intra session recess. So there are 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 intersession recess there. And then between the first year and the second year, there can be an intersession recess. 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 intra session recess. If someone is appointed to an intersession recess, they serve about a year because the next session is just about to start. And so that's the next session.
[00:17:07:02] Jeff Clark: And then you can only serve until the end of that. If you appoint someone you know in, in the first year of a Congress, then they can serve until the next session, which is the second year, which means that the intra 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 Noel Canning. It's NLRB versus Noel 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, you know, adverse to this company. Noel Canning in the labor law area. And Noel 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 was 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.
[00:18:44:22] Jeff Clark: 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 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 intra session recess appointments because there is 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 ten days this recess. The concurring opinion said that there shouldn't be intra session recess appointments.
[00:20:07:08] Jeff Clark: 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'm going to. I think they're going to treat that as, 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 ten day or ten 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. I'm 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.
[00:21:31:18] Jeff Clark: And that power 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 the president is, you know, 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. Claus 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, it 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 he can get back to something much more like the original confirmation process that was a lot shorter and a lot more reasonable.
[00:22:48:29] John Killick: 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, John Killick.
