A conservative legal activist who landed in hot water during Brett Kavanaugh’s confirmation hearings called on House speaker Mike Johnson (R-LA) to ensure that Donald Trump’s second-term nominees be subjected to the same scrutiny as the U.S. Supreme Court justice.
Ed Whelan, a distinguished fellow Ethics and Public Policy Center, published an op-ed Thursday in the Washington Post urging the House speaker to block an attempted power grab by the president-elect that would bypass the legislative check on executive appointees.
“President-elect Donald Trump is threatening to turn the Constitution’s appointment process for Cabinet officers on its head,” Whelan wrote. “If what I’m hearing on the conservative legal grapevine is correct, he might resort to a cockamamie scheme that would require House Speaker Mike Johnson (R-LA) to play a critical role. Johnson can and should immediately put an end to this scheme.”
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The U.S. Constitution gives the Senate power to reject the appointments of what Alexander Hamilton called “unfit characters,” and Whelan said Johnson was uniquely positioned to stop Trump’s plan to get around the Senate’s advisory role to install unqualified loyalists like Matt Gaetz to his Cabinet.
“It appears that the Trump team is working on a scheme to allow Trump to recess-appoint his Cabinet officers,” wrote Whelan, who took a leave of absence from his role with the think tank after speculating on social media about Kavanaugh’s rape accuser. “This scheme would exploit an obscure and never-before-used provision of the Constitution (part of Article II, Section 3) stating that ‘in Case of Disagreement’ between the houses of Congress, ‘with Respect to the Time of Adjournment,’ the president ‘may adjourn them to such Time as he shall think proper.'”
“Under this scheme, it appears that the House would adopt a concurrent resolution that provides for the adjournment of both the House and the Senate,” Whelan added. “If the Senate doesn’t adopt the resolution, Trump would purport to adjourn both houses for at least 10 days (and perhaps much longer). He would then use the resulting intrasession recess to appoint Gaetz and other Cabinet nominees.”
Whelan holds the the Antonin Scalia chair in constitutional studies at the conservative think tank, and he pointed out that the late Supreme Court justice labeled the recess-appointment power an “anachronism” because the Senate was always available to consider nominations thanks to “modern forms of communication and transportation.”
“Scalia also argued that the president’s power to make recess appointments is limited to intersession recesses and does not apply to the intrasession recess that the Trump scheme would concoct,” Whelan wrote. “The justice, who died in 2016, would be aghast at the notion that a president could create an intrasession recess for the purpose of bypassing the Senate approval process for nominations.”
“Mike Johnson should not be complicit in eviscerating the Senate’s advice-and-consent role,” Whelan added. “He should promptly make clear that the House will abide by its usual schedule of recesses and will not attempt to engineer a recess of the Senate.”
