Donald Trump isn’t the only Washington politician on vacation right now. The Senate is on break from now until after Labor Day (much to the chagrin of the president). And, somewhat surprisingly, before they left Washington, they may have performed their greatest act of Trump resistance yet.
Normally, when the President appoints high-level federal officials, such as federal judges or agency directors, the president has to first nominate the official and then the Senate votes to approve that person. That process can be slow if the Senate takes its time to consider a nominee. Or, as in the case of Merrick Garland, that process may never happen, as President Obama’s nominee was never even given a hearing in the Senate.
There’s one run-around in the president’s arsenal to make this process quicker. Under the Constitution, the president has the power to fill vacant positions without any Senate input if the Senate is in recess. People appointed through these recess appointments have the full authority of the position with one exception – their appointment lasts only until the end of the Senate’s legislative session.
Yesterday, in a subtle announcement made by Senator Lisa Murkowski, the Alaska GOP senator who was one of the two Republican senators who steadfastly and successfully fought against Trumpcare, the Senate declared that, despite taking a month-long vacation, it wasn’t really going to go into recess. Instead, Murkowski announced that the Senate would have nine “pro-forma” sessions. These sessions, which will happen every three days over the vacation period, will consist of a Senator gaveling the Senate into session and then immediately gaveling it out of session. These sessions will last a minute, if that.
By having these pro-forma sessions, the Senate is technically not going to ever go into recess, which means that President Trump can’t use his power to fill open positions without Senate approval. This blocks Trump from firing Attorney General Sessions and quickly replacing him without Senate approval, something that some Senators had feared might happen if the Senate were to go into full recess. It also means that Trump can’t quickly fill the opening at the head of the Department of Homeland Security that was created when he hired General John Kelly to be his chief of staff.
But it’s also much bigger than that. Currently, there are about 100 empty positions in Trump’s administration that he has the power to fill. With a Senate in recess, he could have filled all of these positions with people that the Senate might have balked at. Instead, he has to wait and go through the normal process, something that he has been inordinately slow at doing.
Senate majority leader Mitch McConnell’s spokesman brushed off these pro-forma sessions as a technicality that doesn’t indicate that the Senate is trying to block the president from recess appointments. “To meet our constitutional requirement of meeting every few days, we’re doing pro formas. We didn’t do it to block Trump,” he said.
Regardless of what McConnell’s spokesman says, the Senate could have paved the way for Trump to fill the federal government with people who support his vision for the country. They could have handed him the keys to the federal bureaucracy and said, “Go for it!” But instead, the Senate closed the door on this option, asserting their own authority to oversee Trump’s appointments.
Given the sheer number of high- and low-level vacancies in the federal government, the rumors swirling around Sessions, the pressing need for Trump to have a functioning executive branch, and the growing number of Senators speaking out against Trump, it’s hard not to take this action a bold step of resistance to Trump.