When Donald Trump was elected president in 2016, it surprised many, including some of Trump’s own team. There was no transition plan ready, and when Chris Christie fell out of favor with Trump, Christie’s transition plan was scrapped. It thus took a long time for Trump to choose appointments and get them approved by the Senate.
Not so this time. Team Trump 2.0 has hit the ground running, announcing several appointments just a week after the election. Clearly the incoming Trump administration has learned from 2016, coming out of the gate with choices that impressed even some Trump critics. And with a Republican controlled Senate, Trump could be assured of their successful confirmation.
So it was puzzling when word came from Trump sources that they would use recess appointments to assemble the new administration. With Republican control of the Senate, what was the concern?
And then we found out.
Several subsequent nominations have been controversial to say the least. It’s clear now that Trump knew some of his nominees would push the limits of even a Republican Senate and his team had already concocted a plan to get around the Senate’s constitutional duty of advice and consent.
It’s understandable that a president would want his choice of nominees, and it’s clear that Trump prizes loyalty above everything else. And sure, a president has the prerogative to choose his nominees. But, like every other presidential act, it must occur within the four corners of the Constitution.
We won’t take a position on specific nominees, but we do take a position on adherence to the Constitution and to the Founders’ design. The limits of the Constitution are not suspended when your team is in power, and conservatives by disposition should respect not only the letter of the Constitution but also the spirit of the Founders’ design.
In short, we don’t suspend the constitutional order in order to reflect “the will of the voters.” In our system, the will of the voters is reflected in the House of Representatives.
One of the Founders’ prime concerns was that no branch of government gain enough power to become tyrannical. So government power is limited, divided, and subject to checks and balances. The Senate’s duty of advice and consent is a key check on the power of the presidency.
In the Founders’ design, the states elect the president (through the Electoral College), but they also choose those who check the power of the president. This is to eliminate the possibility of tyranny through the will of the people.
When any government actor sees the Constitution as an obstacle to get around, they have already violated the Founders’ design, and if they act around the Constitution, they violate their oath of office.
No, Trump 2.0 should not assemble an administration by going around the Senate, and no, the Speaker of the House should not be complicit in such a scheme. Trying to work around the Constitution would be an ominous start to an aspirational administration.
November 19, 2024