Ad­vice and con­sent in the time of ob­struc­tion

Democrats’ slow-rolling makes re­cess ap­point­ments Trump’s only al­ter­na­tive

The Washington Times Daily - - COMMENTARY - By Daniel Oliver Daniel Oliver is chair­man of the board of the Ed­u­ca­tion and Re­search In­sti­tute and a di­rec­tor of Cit­i­zens for the Re­pub­lic.

Des­per­ate times call forth diabolical plea­sures, and what could give more plea­sure than stop­ping the ob­struc­tion­ist Democrats dead in their tracks. There are more than 500 un­filled ex­ec­u­tive branch po­si­tions and more than 120 ju­di­cial va­can­cies. If the Democrats de­cide to re­quire a min­i­mum of 30 hours of de­bate on each nom­i­nee, as they are en­ti­tled to do un­der Se­nate rules, con­firm­ing all of Pres­i­dent Trump’s nom­i­nees could take, es­sen­tially, for­ever — i.e., Pres­i­dent Trump’s whole first term. This is the re­venge of the sore losers.

Mr. Trump has said he doesn’t need to fill all the po­si­tions, and that is tech­ni­cally true. But he has to fill many of them if he is go­ing to get con­trol of the fed­eral bu­reau­cracy, which he must do if he is to ful­fill his oath to take care that the laws be faith­fully ex­e­cuted.

The so­lu­tion to the prob­lem is sim­ple, un­con­ven­tional and not with­out prece­dent. Mr. Trump should, pur­suant to Ar­ti­cle II, Sec­tion 2, Clause 3 of the Con­sti­tu­tion, sim­ply ap­point hun­dreds of people to the va­cant po­si­tions dur­ing a con­gres­sional re­cess.

It is true that re­cess ap­point­ments are nor­mally thought of as one-off op­er­a­tions. But there is no rea­son why 500 people couldn’t be ap­pointed dur­ing a re­cess.

In 1903, more than a half-cen­tury be­fore mod­ern ce­sium atomic clocks (which are ac­cu­rate to one sec­ond in 1,400,000 years), Teddy Roo­sevelt made 193 re­cess ap­point­ments dur­ing — a gen­er­ous word, un­der the cir­cum­stance — the frac­tional nanosec­ond when, as the gavel hit the desk, one con­gres­sional ses­sion ended and the next be­gan. Congress was not amused.

Barack Obama tried the re­cess ap­point­ment gam­bit, but if he spent more than a nanosec­ond study­ing the rules, it didn’t show — though, more likely, he did know the rules but thought he could get away with break­ing them. He didn’t. His re­cess ap­point­ment of three people to the Na­tional La­bor Re­la­tions Board while the Se­nate was on a three­day break was in­val­i­dated by the Supreme Court in Na­tional La­bor Re­la­tions Board v. Noel Can­ning. The court held that the three-day break was not a re­cess. The vote was 9-0, the kind of lop­sided de­ci­sion that stim­u­lates Hil­lary Clin­ton to tweet­ing. The court in­di­cated that the pres­i­dent may use the re­cess ap­point­ment power only dur­ing a Se­nate re­cess of 10 days or longer.

Mr. Trump can ask Se­nate Ma­jor­ity Leader Mitch McCon­nell to re­cess the Se­nate for 11 days (one day ex­tra, to play it safe) and on Day 11, ap­point 500 people to ex­ec­u­tive branch po­si­tions, and per­haps a few to the fed­eral bench as well.

The re­cess ap­pointees could serve un­til the end of the next ses­sion of Congress, i.e., al­most two years, which is about as long as many ex­ec­u­tive branch ap­pointees serve any­way.

Even though the so­lu­tion to the prob­lem is easy, we should ask: Is this a good idea? In a bet­ter world, the an­swer would cer­tainly be no. Con­ser­va­tives should al­ways be sus­pi­cious of the ex­er­cise of power by the ex­ec­u­tive.

But the un­hinged Democrats’ ob­struc­tion is quite be­yond nor­mal and calls for a sim­i­lar re­sponse. For years — decades, ac­tu­ally — a lib­eral Supreme Court by its de­ci­sions has “en­acted” leg­is­la­tion that Democrats were un­able to get Congress to en­act. Now, as the Democrats are loath to give up the leg­is­lat­ing power of the Supreme Court (hence the stonewalling of Judge Neil Gor­such), so are they loath to al­low the ex­ec­u­tive branch to func­tion prop­erly.

Of course, the real prob­lem is that the coun­try is se­ri­ously di­vided. It no longer has a com­mon pol­i­tics. The pro­gres­sive lib­er­als, heirs of Woodrow Wilson, Franklin Roo­sevelt, Lyndon John­son and Barack Obama, devo­tees of the ad­min­is­tra­tive reg­u­la­tory state and the ’60s coun­ter­cul­ture, just don’t have the same con­cept of govern­ment and its proper role as the con­ser­va­tive Trump people, heirs of Calvin Coolidge and Ron­ald Rea­gan, and free mar­ke­teers tem­pered by concerns for neigh­bor­hood, cus­tom and so­cial sta­bil­ity. The pro­gres­sive lib­er­als have lost the con­fi­dence of the coun­try, as is demon­strated not just by the 2016 pres­i­den­tial elec­tion but by state and lo­cal elec­tions over the past six years. Their time is over. They are go­ing.

But they are not go­ing qui­etly. In­stead, they are ob­struct­ing the gov­ern­ing process, which is sup­posed to carry out the will of the people as ex­pressed at the bal­lot box.

That is why Mr. Trump, chan­nel­ing his in­ner Teddy Roo­sevelt, should take the des­per­ate mea­sure of ap­point­ing ex­ec­u­tive branch per­son­nel whole­sale. He can revel di­a­bol­i­cally in the dis­com­fort of the sore losers who seek to ob­struct (the du­ra­tion of which dis­com­fort, and the at­ten­dant Schaden­freude, will be mea­sur­able by a tick-tock­ingly, dilly-dal­ly­ing pen­du­lum clock) while teach­ing them the les­son that ob­struc­tion has a price: los­ing the op­por­tu­nity to have the Se­nate ad­vise and con­sent.

Mr. Trump can ask Se­nate Ma­jor­ity Leader Mitch McCon­nell to re­cess the Se­nate for 11 days (one day ex­tra, to play it safe) and on Day 11, ap­point 500 people to ex­ec­u­tive branch po­si­tions, and per­haps a few to the fed­eral bench as well.


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