Not A Pretty Scenario

If critics of President-elect Donald Trump needed any additional evidence as to how he intends to govern during his second administration one need only look at whom he has presented to the country and to the world as his desired Cabinet members and advisers. They clearly are all Trump loyalists who repeatedly have demonstrated that they have no qualms with his programs and are prepared to do his bidding without any objections.

As has been noted by almost all the analysts, Trump learned much from his first term about who to appoint and what qualifications he personally wanted from within his entourage. For the most part, the rash of appointments announced to date reflect the President-elect’s search for loyalists rather than knowledgeable, experienced, individuals who are capable and qualified to lead a huge bureaucracy.

The individuals proposed so far appear largely not to have been properly vetted. Generally, appointees--especially the roughly 1000 executive appointees who require Senate confirmation--are required to obtain thorough background checks including by the F.B.I and the Justice Department. Proposed nominees are usually scrutinized for: tax issues; ethics and financial disclosures; legal proceedings, investigations, and drug use; publications and organizational affiliations; and medical, family, and personal issues. All of these issues are then considered with the candidate’s overall profile as conditions for security clearance.

In the case of many of the newly announced Trump appointees, it appears that not only have they not received even a preliminary, serious review, but many of them have blatant flaws in their professional and personal resumes which should disqualify them immediately from holding high-level Government appointments. What is more disturbing than Trump’s apparent disregard of many of his appointments’ disqualifications is his clear determination to enable them to be ensconced in the positions he has designated for them, regardless of any of their flaws.

President-elect Trump wants his appointees in the positions he has designated and in the jobs to which he has selected for them. If they appear likely to fail to obtain Senate confirmation, then he will want them to be made as recess appointments after he convinces House Speaker Mike Johnson and in turn the Senate to recess. If he is unable to obtain Senate compliance, it has been suggested Trump will exercise the presidential authority to adjourn Congress thus creating the recess he desires to complete all his appointments.

Constitutionally, Presidents can adjourn Congress if they were to request the House to adjourn and the Senate were to reject that request. The Supreme Court ruled in 2014 unanimously, that if the Senate were not to agree to a House recommendation to adjourn, the President would have the power to adjourn the Congress. He then could make recess appointments for those who would serve until the end of the congressional session, without needing Senate confirmation.

The problem with all of these manipulations is that are occurring before Trump has even begun his term in office. His actions reflect the extent to which the President-elect has thought through this scenario. His transition team had provided Trump loyalists and has moved to have them ready for confirmation hearings when the new Congress convenes on January 3.

More cynically, however, the recess appointment scenario clearly has been in their playbook.  Despite the fact that Trump enjoys a Republican controlled incoming Senate, the transition team is moving ahead leaving all eventualities possible. It is also confirming what candidate Trump jokingly had promised, that he would act like a dictator on day one. While most observers brushed aside this as campaign humor, it is becoming more and more apparent that President-elect Trump has every intention to proceed with this style of governance—certainly with respect to presidential appointments--absent a compliant Senate. 

Observing these machinations this early in an administration not yet in office is chilling. There have been other incoming Presidents who entered office controlling both Houses of Congress, but none were so dismissive of historical norms and traditions. The possible challenges which the new Trump Administration may present to those in the opposition or any Republicans who oppose him are ominous. Many of Trump’s maneuvers ultimately may be decided in the federal courts and finally by the Supreme Court. The problem for those who plan to challenge him will be that this U.S. Supreme Court may well be as supine to his wishes as the rest of the U.S. Government.