Look ahead at the 119th Congress, recess appointments, and the filibuster with James Wallner

R Street Institute Senior Fellow James Wallner recently appeared on C-SPAN to discuss the incoming 119th Congress, President-elect Trump’s potential recess nominees, U.S. Senate leadership, the filibuster, and answer questions from callers. The questions and answers have been edited for length and clarity. (Please refer to the C-SPAN interview for the complete conversation.)

Question: What is a recess appointment?

The Constitution’s opening clause requires the president to nominate and the senate to confirm any judge or other officer of the United States. This is advice and consent. It also has a provision in the Constitution that allows for the president to put officials in positions, including judges, when the Senate is in recess. For much of Senate history, Senators were not in town, and it took a long time to get to town. This was before you could hop on a plane and get to D.C. From anywhere in the country in a few hours. The idea was to ensure the functioning of the government. But when the Senate returned, the Senate would have to vote on that nominee, if the president wanted that person to continue in that job for a longer period of time. Recess appointment nominees can only serve for a limited amount of time.

Question: When was the last time a recess appointment was used? Has it ever been used for a cabinet level position?

Recess appointees have been used for pretty much every position. Presidents have used them on a routine basis. They are not controversial in and of themselves. However, they gained added controversy in this era of partisanship. They also gained added controversy since former President Barack Obama appointed several commissioners to the NLRB when he claimed the Senate was in recess and that went to the Supreme Court and the case NLRB vs. Noel Canning that spoke to his issue and limited the power of the president to make recess appointments. 

Question: Who decides if a recess appointment can be used?

At the end of the day, no one is in charge. No one rules America. That is the point of America. Ultimately, it is the people. The people will make the decision as to how their elected officials both in the White House and Congress act when they go back to the polls in the next election. With regard to the powers of each branch, each branch gets to decide how it will execute its power, use its powers under the Constitution. The president can certainly decide, like President Obama did, that he wants to make a recess appointment. But if the Senate and House disagree, they have tools they can use, the power of the purse, they can even impeach if they want. And the courts also have a role to play, as we saw in 2014 in the NLRB case at the Supreme Court.

Question: You were talking about the chambers having control over use of recess appointments. It was during former President Trump, now President-elect Trump once again, in his first term, that he threatened to adjourn congress to push through nominees using recess appointments. How does that work?

The Constitution does give the President power to adjourn the House and Senate on “extraordinary occasions” when they cannot agree. That is the term it uses, “Extraordinary occasions” when they can’t agree, cases of disagreement between the two chambers on the time of the adjournment. So the president has floated the idea, and others have floated the idea, that maybe the president could use that to forcibly adjourn Congress and therefore create a recess, create the opportunity, that he could then use this power under the Constitution to make recess appointments. If you actually look at it, it has never been done before. It would be an extraordinary power the president would use, something more akin to what the king had in Great Britain, when we declared our independence, when the king dissolved parliament at will. That is not something the founding fathers were thrilled about. Also, you have to be in a state of disagreement. That is a very precise term and it seems clear the Senate can control when it wants to be in a state of disagreement with the House and when it doesn’t.

Question: James, you talked about both chambers. You mentioned both chambers, although appointments and nominations usually go through the Senate. What is the House’s role? What can they do when it comes to nominations?

You’re absolutely correct that the Senate and only the Senate has a role in that confirmation process. The House does not. However, if the president wants to make a recess appointment or if the president is to make a recess appointment, the Senate has to be in recess. The Senate can control when it goes into recess, when it adjourns and when it does not adjourn. However, the Constitution requires the senate to get the permission of the House if it wants to adjourn for more than three days. This will involve the House, whether the Senate wants to or not or whether the president wants to or not. You have to have both chambers in agreement to adjourn for a sufficient period of time in order for the president to have the opportunity to make a recess appointment.

Question: The Republicans won control of the Senate for the upcoming 119th congress. Right now, they will have an expected 53 seats. There is one race in Pennsylvania that is going into a recount, but they are expected to have 53 seats. What does that mean for wanting to gavel out and potential legislation?

The first thing your viewers need to understand is a simple majority can adjourn the Senate. Ever since we saw them use the nuclear option to get rid of the filibuster for executive and judicial branch nominations, a simple majority can overcome a filibuster and ultimately confirm a nominee. This isn’t a problem. There is no crisis if you are President-elect Donald Trump, if you have the support of all the Republicans, because you have the votes right there. You can’t filibuster these nominations. However, if you do not have the support of all the Republicans, then this will not happen, because you have to be in a state of disagreement for the president to use this extraordinary power on this, as the Constitution says, this extraordinary occasion. 

It seems to me you cannot force the House into a state of disagreement, it has to take action on its own, which itself takes a majority. In the meantime, and we have seen going back to President George w. Bush and more, majorities will take these pro forma sessions, which will sound bizarre to those at home, where you come in, you gavel in, there’s no one else around, they say we are here, then they, they adjourn, and that is it. They do that every three days. As long as they keep doing that, that prevents the president from making a recess appointment, because the Senate is not in a recess of sufficient length.

Question: There is a Reuters headline, expect to hear the f word a lot in the senate next year. F word is the filibuster. It is something Republicans have said they want to keep in place. How could that impact president-elect Trump’s legislative efforts?

As we understand the filibuster, it operates as a veto. It means you need 60 votes, not 51, to get anything done. Because the Republicans do not have 60 votes, that means they would need to moderate their agenda in order to get things done. That is the conventional understanding of the filibuster. 

After having worked in the Senate for many years, watching senators try to filibuster things, I can assure you the filibuster is not a veto. It does not seem like that until you are tasked for trying to filibuster something. No one asks for your permission if they don’t want to. The filibuster is an opportunity to speak, an opportunity to speak and be heard and participate in the debate, and you have to sustain that filibuster and that obstruction. That is very hard. For much of American history, there was no way to end the filibuster, and the Senate still did big things on narrow majority votes. We can still see lots of things pass even with the filibuster on legislation, but that is up to the Republicans, not Democrats. It is up to how they manage the Senate and how aggressively they try to push through their agenda.

Question: Can you remind us what type of legislation 60 votes is not needed on?

In recent years, people have heard the term “budget reconciliation.” Budget reconciliation is a fancy term that refers to a bill that cannot be filibustered, that there is a time limit for its debate on the Senate floor and the House floor. But the house floor can do whatever they want with the special rules. So these rules in the budget process only really only apply to the Senate. 

The idea is that when Congress passes a budget and it has topline level for spending and revenue, that later on, they can look at that budget, look at the permanent law, see how they are comparing. And if we are spending more than the budget said we ought to, if we are bringing into little, as the budget said we ought to, then they can pass a bill to reconcile or align that permanent law with the budget. That is what the budget reconciliation measure does. It is ostensibly meant to focus only on budget related items, not policy related items. But both parties have used budget reconciliation to do purely policy related stuff.

Question: Can you explain the filibuster used by Senator Tommy Tuberville (R-Alabama) used in promoting generals?

What Senator Tuberville did was not a filibuster. This is why we think the filibuster is a veto. Again, the filibuster is just the opportunity to stand and talk. You can’t call a vote in the Senate as long as a senator is speaking or seeking recognition to speak. 

As all of you know, standing up and talking takes a lot of effort. You get the lights on you and the cameras are rolling and there are other places you want to be and your colleagues are grumbling, maybe your spouse or kids back home are like, why are you not coming home?

There are a lot of things that factor into that make it hard to sustain. What Senator Tuberville simply said was say no. The Senate has rules, and it can follow those rules, and for much of its history, the rules led it to do great and big things. Just like the House today, the Senate does not follow its rules all the time. Instead, it creates new rules to cut to the chase. The mechanism used to do that is what is called a unanimous consent agreement. They say, I ask for unanimous consent that we take these five nominations and put them together and just confirm them. When you ask for unanimous consent, you’re asking for everyone’s consent. This is a vote which requires 100 senators to vote yes. You are asking for Senator Tuberville’s permission, at which point, he is completely justified to say no, because you are asking for his permission. If you do not want to Senator Tuberville to say no, do not ask for his permission, and just use the rules instead of asking for unanimous consent.

Question: What still requires a two-thirds vote in the Senate?

The filibuster essentially says you need 3/5 of all senators — if you have 100 senators in office, that is 60. You need 60 senators a vote to end debate if a senator or senators don’t want to end debate and go to a final vote. 

Since the nuclear option, that does not apply to nominations anymore. It still applies to legislation. Within the legislative realm, there are some things like budget reconciliation measures and the past trade approval measures, there are things that don’t require 60 that we call fast track. They have time limits on their debate. Then we get to the 2/3 level, any efforts to end a filibuster to change the Senate rules requires two thirds of senators present and voting. If you’ll have all 100 senators on the floor, it will take 67 senators in order to change the senate’s rules. You also need 2/3 to confirm treaties and ultimately to impeach a president, or any official of the United States.

Question: The GOP won control of the Senate chamber for next term. Republicans were able to hang onto the House. It is likely they will also have a slim majority. What does that mean when it comes to legislative effort? When was the last time a party had a trifecta?

The Republican party had a trifecta in 2017. This was after seven years of the party signing blood oaths that they would repeal and replace Obamacare. The Senate had one vote on it, they were one vote short, and they walked away and did not so much as mention it again. Mitch McConnell then said if there is anything republicans agree on, it is tax reform. We all love tax reform. They barely passed tax reform. That was only after Senators like Pat Toomey (R-Penn.) and Bob Corker (R-Tenn.) came in and led an effort on the Finance Committee to jumpstart the process. 

If you do not like the republican agenda and you do not like president-elect trump’s agenda, a lot of the concerns you have are fully justified but I think it is not likely based on past history that Republicans will be able to steamroll and pass whatever they want. If you are a big fan of that agenda, if you want to make America great again, I think a lot of the excitement and expectation may lead to disappointment. In reality, Republicans do not all agree on the agenda. They just don’t do that. Immigration is a great example. The same with the Democrats. I think what we will see over the next seven or eight months is the reality of our partisan divisions within the parties coming to the forefront and it will change our expectations that we have right now.

Question: You mentioned senator Mitch McConnell. He stepped down from his leadership role of the party after 18 years. The Senate Republicans elected John Thune of South Dakota as their new leader. What do we know about his relationship with President-elect Trump?

Senator Thune, like most Senate Republicans, has a relationship with President-elect Trump. He has been making efforts to get closer with him. Even when he was President before, he comes from a state where the president is popular. 

Any Senate Leader will have a relationship with the president, especially a president of your own party. The question becomes when that Senate Leader is seen as just doing the job of that president versus helping to facilitate the process for all Senators and all of his or her own senators in their own party. Alben Barkley was another majority leader from Kentucky and his president was Franklin Delano Roosevelt. He was criticized for being too close to FDR. At one point, he resigned his seat as leader. Then the Senate Democrats come in and unanimously re-elect him the very next day. There is a give and take here. When we say the president’s agenda, we are talking about an agenda the voters of these Senators want to pass. They are doing things their voters want them to do. When their voters decide they do not want that to happen or the Senators say that is a bridge too far for me, they will expect their leader to work for them and not the president.

Question: Can there be more than one president at a time? Biden is currently President. Therefore, how can Trump, who has not been inaugurated yet, do recess appointments?

The president-elect cannot actually nominate anybody and be sworn into office until he takes the office in January of next year. We only have one president. 

The idea we have one president is something the framers believed in strongly because the president is meant to have unity in the executive so it can manage the Executive Branch, a hierarchical organization, that ultimately represents the nation abroad. We only have one president at a time. The president may be eclipsed by their successor, like in this case, people are talking about Trump and what is to come as opposed to Biden and what we have right now. We still have from a legal perspective only one president. 

Question: I want to know if somebody is appointed or confirmed, what mechanism can the senate use to get them out of there if they do not like them, if he is messing up or whatever?

The Constitution gives the Congress the power to impeach. It gives the House the power to impeach, which is like an indictment. We are going to charge you with this crime. The House will pass the resolution of impeachment. It goes to the Senate. The Senate would have a trial and ultimately decide, as senators are the judge and jury. They would decide whether to convict. If they convict that official in the government, that official is removed from office. 

That is not the only power they have. That is the power of the purse. You can cut off salaries. You can limit the way funding is used. You can use your power of the purse and your power to pass laws to insulate that person so they cannot cause a lot of trouble, and try to make their lives miserable so they ultimately leave. 

The president can veto anything. But then Congress has the ability to override that veto. Lastly, they have the ability to conduct oversight. That is not nothing. You have hearings. Those hearings are opportunities for the media to cover something. You can draw attention to stuff and let the American people know what is happening. It is a very important tool to use in between elections because it shines a light on what the government is doing, and then the people can make it very clear to their elected officials what they expect them to do moving forward. If they do not comply, they are not going to go back to D.C. after the next election.

Find more of RSI’s governance work here.