MICHEL MARTIN, HOST:
Senate Republicans are expected to pick a new leader today, who will continue to lead them when they resume the majority this January. They have three candidates to choose from - Rick Scott from Florida, John Cornyn of Texas and South Dakota's John Thune. One of their jobs will be to consider the 1,200 or so presidential nominations - from federal judges to cabinet secretaries - that typically require U.S. Senate confirmation.
President-elect Donald Trump says he wants the candidates for the Senate's top job to agree to change the rules to bypass Senate confirmation for the top officials in his government so they can get right to work. Can they do that? Should they do that? We're going to put these questions to Ed Whelan. He is a lawyer who has worked for all three branches of the federal government, and he is a longtime senior fellow with the Ethics and Public Policy Center - that's a well-known conservative think tank - where he focuses on constitutional issues. He used to lead that organization as well. Good morning, Mr. Whelan. Thanks for joining us.
ED WHELAN: Thank you, Michel.
MARTIN: Trump says the new Senate leader must agree to let him make appointments when the U.S. Senate isn't in session. What does he mean by that? How would that work?
WHELAN: Well, I have to say his tweet is rather a jumble, so it's not entirely clear. But what he is objecting to is the fact that the Senate in recent years and in his first term did not formally adjourn during its usual recesses. But what he seems to be asking the Senate to do is to recess right away so that he can bypass the usual advice and consent process for cabinet officials and go ahead and simply install them unilaterally via recess appointments. If that's what he means, it's a terrible idea that completely upsets the Constitution's separation of powers on the role of the president and the Senate on appointments.
MARTIN: So isn't that one of the primary roles of the Senate, to provide advice and consent?
WHELAN: It sure is. And, you know, Alexander Hamilton made this clear in "The Federalist Papers" in writing about this division of power over appointments of top officials and just how important it is that the Senate have a check on any tendency that a president might have to install cronies or people who are, you know, otherwise unfit for the position.
MARTIN: I was going to ask that. Like, why - you think it's in the Constitution because the founders believed that this was important as part of the separation of powers to prevent, I presume, from - unqualified people from taking these jobs or people who had some sort of interest that was more aligned with the president's personal interest or interests than the country's interest. So - but why then would the founders have put the recess process into the Constitution as well - this provision for recess appointments in there?
WHELAN: Well, the recess appointment provision is in there because, especially back then, it might sometimes have been the case that a vacancy would arise when the Senate wasn't in session. And the thinking was that it might be necessary to have someone in an office, and so this is the means by which that would happen.
Justice Scalia called the provision anachronistic, you know, basically obsolete in an opinion some years ago, but that's not how it's been interpreted by the majority of the court, and so it's available as a means. But it clearly was intended all along, again, as Hamilton made clear, as an auxiliary means of appointment, you know, in such instances when the normal means isn't available.
MARTIN: What about the argument from the president-elect himself that - and some of his allies - that current procedures are stymieing the chief executive's agenda because these confirmations can take a long time. In essence, he's saying, we have a lot to do. I need these people to get to work. This is the fastest way to do it.
WHELAN: Well, certainly, his top officials can be confirmed and appointed promptly. That happened fairly quickly back in 2017. Look, there can be a problem with mid-level officials. There are so many that are subject to Senate confirmation. But right now you have - or you will have, rather, a senate controlled by Republicans. What's more, there's an important rule that changed back in 2019 that makes it even easier to get nominees through quickly, makes it harder for the minority to obstruct. So, look, I think there may be - there may well be a role for recess appointments for, you know, third-tier officials 18 months - maybe six or eight months down the road, but this isn't something that should be a - you know, a priority off the bat.
MARTIN: But forgive me. You said this is an awful idea. Tell me why you say that, as briefly as you can.
WHELAN: Well, it's awful if this is used to install cabinet officials at the outset. If the idea is to use it to put his top people in place, this, again, completely upsets the constitutional scheme that the framers had in mind and would, you know, deprive the Senate of one of its most important powers.
MARTIN: That is Ed Whelan of the Ethics and Public Policy Center. He is a specialist in the Constitution. He also served as the group's president for many years. Mr. Whelan, thank you so much for sharing these insights.
WHELAN: Thank you. Transcript provided by NPR, Copyright NPR.
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