‘Conservatives must be clear-eyed about the potential consequences of following in the footsteps of President Barack Obama,’ the memo reads.
Former vice president Mike Pence’s political organization is urging Republicans to reject President-elect Donald Trump’s push to use recess appointments to expedite the confirmation process for his cabinet picks.
Advancing American Freedom is issuing a memo, obtained by National Review, warning conservatives about the downsides of sidestepping the constitutional process of Senate confirmation to quickly push through Trump’s cabinet selections.
“Conservatives must be clear-eyed about the potential consequences of following in the footsteps of President Barack Obama by continuing to ‘go nuclear’ on important safeguards like the Senate’s prerogatives in the confirmation process,” the memo reads.
“The Constitution’s design depends on the three branches of government jealously guarding their constitutionally delegated powers from one another. Members of both the House and the Senate should reject any call to collude with another branch to undermine the essential check of senatorial advice and consent.”
President Obama used the recess-appointment process in 2012 to push through nominees for the National Labor Relations Board during a three-day recess period. The Supreme Court ruled unanimously in 2014 that Obama’s three recess appointments were invalid, although the liberal and conservative justices were divided in their reasoning.
Advancing American Freedom’s memo cites the late conservative justice Antonin Scalia’s concurring opinion warning that future presidents could exploit the recess-confirmation process to disempower the Senate.
“Conservatives long-warned liberals about the consequences of their disastrous jurisprudence, which they only pretend to care about now that they have been voted out of power,” the memo concludes.
“Although some on the right are now arguing that conservatives should exploit this limited constitutional accommodation to install Trump’s nominees (including forcing the Senate to adjourn against its will), conservatives must defend the clear text of the Constitution over any short-term political expediency.”
Pence and Advancing American Freedom have praised some of Trump’s selections for key national-security positions. But, the former vice president said last week he opposes Trump’s selection of anti-vaccine activist Robert F. Kennedy Jr. to run the Department of Health and Human Services because of Kennedy’s history of supporting abortion.
The group has largely stayed silent on Trump’s selection of Matt Gaetz for attorney general, which was made despite an ongoing Ethics Committee investigation into allegations that Gaetz paid women for sex. Senate Republicans are wary of the Gaetz pick for a number of reasons, including the content of the ethics probe, his support for marijuana legalization, and his temperament.
“For me, it’s character,” one GOP senator told NR on Tuesday, adding: “I’ll tell you right now, he doesn’t have the votes on the floor.”
The 2014 Supreme Court ruling dictates that the Senate must be in recess for at least ten days through a majority vote in order for recess appointments to be a possibility. Another method would be for the president to adjourn both congressional chambers with cooperation from the House Speaker.
Incumbent Speaker Mike Johnson (R., La.), who is poised to reclaim the gavel next Congress with Trump’s blessing, has kept the door open to the possibility of recess appointments.
Trump made recess appointments a litmus test during the Senate GOP’s recent contest to succeed outgoing party leader Senator Mitch McConnell (R., Ky.). All of the GOP leader candidates expressed openness to Trump’s demand that recess appointments be used to expedite confirmation for his appointees to ensure the next Trump administration gets off to a fast start.
Ultimately, Trump did not weigh in on the leadership race between GOP Senators John Thune (S.D.), John Cornyn (Texas), and Rick Scott (Fla.), the preferred candidate of several conservative activists and influencers.
Thune won the leadership contest last week to become the Senate Majority Leader for next Congress. In subsequent interviews, Thune did not shut down the possibility of using recess appointments, while stating his preference for the Senate’s constitutional role in confirming presidential nominees.
“Well, it’s an option,” Thune told Fox News last week on the subject of recess appointments.
“So, the same Republicans that you mentioned, they might have a problem voting for somebody under regular order probably also have a problem voting to put the Senate into recess. You have to have concurrence from the House. There’s a process.”
But, Thune told a local South Dakota outlet that he prefers the regular confirmation process and described the complicated procedure for getting recess appointments done.
“My preference is going to be to grind it out the way we normally do it,” Thune said.
“In the end it’s a 51 vote threshold. But if you have a nominee that can’t get 52 Republican votes, on an up and down vote you may have a hard time getting 51 votes do it under a recess appointment too.”