What Happens Next?
Over past weeks, news outlets have been inundated with articles and opinions on President-elect Trump’s 15 choices for his Cabinet. All of us have probably learned something about each of them. But do you understand the process that must happen before the president and his new cabinet are able to get to work for us?
Between now and January 20, 2025, Inauguration Day, each of them will be put through a rigorous confirmation “sprint” with the goal that they can start work on Day 1.
Last week we looked at the history of the Presidential Cabinet and a description of the 15 cabinet offices. Now is a great time to answer the question: What happens next?
After separation from a kingly rule, the framers of the Constitution were determined to create a governing document that set forth checks and balances using a 3-branch system of government. As we look at the appointment and confirmation process of installing these selected cabinet candidates, we will see the framers’ goal was realized.
Constitutional Article II, Section 2 divides the responsibility of filling top positions in the executive branch between the president and the Senate . . . the president’s nomination of Cabinet secretaries and the Senate’s confirmation of them.
The Process
First, the president-elect’s transition team nominates appointees and sends their nomination to the Senate.
Second, the Senate determines whether to confirm the nomination.
Third, the president presents a signed commission to the successful nominee, and he or she is sworn in, assuming authority to carry out the duties of the office.
Responsibilities of the President-elect’s Team
The president-elect’s transition team selects, vets and interviews prospective appointees. Candidates are then guided in completing various forms, such as a financial disclosure report, a national security questionnaire, and meeting with an ethics official. The FBI typically does background checks and submits their reports, occasionally helping candidates mitigate any conflicts of interest, if found.
Responsibilities of the Senate
First, the Senate’s executive clerk refers a nominee to a specific committee(s) based on rules and precedents. That committee in turn investigates the nominee. Senators may then begin to look into a nominee’s character, qualifications, and policy views.
In 2025, these committee hearings can begin as soon as the 119th Congress is sworn in on January 3, 2025. The committee can either send a nomination to the full Senate for vote, report favorably with a recommendation, report unfavorably without recommendation, or ask for further hearings. If the committee does not send the nomination to a full floor vote, the Senate may bring it to the floor.
Since the Cabinet’s inception, only nine Cabinet nominees have been rejected by a full floor vote.
The Recess Appointment
There has also been reporting about the use of what is called a “Recess Appointment.” Article II of the Constitution tells us in §2 Clause 3: “The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
Unfortunately for us, the framers did not give further insight for this provision; but if we refer back to our founders, we find Alexander Hamilton (and subsequent attorneys general) has given us more guidance: the clause has “provided for an alternative method of appointment…to allow the filling of vacancies ‘without delay’ during periods of Senate absence.”
Since that time, legal scholars have attempted to define the meaning of key words, such as: “vacancy,” “Congressional session,” and “recess.”
A recess is simply a break in House and Senate proceedings. There are two types of recesses: an intersession recess, longer in length, which is the period between the second session of one Congress and the first session of the following Congress, aka a sine die adjournment (break) of one session and the convening of the next; and an intrasession recess, which is typically a brief 5 – 11 day break from normal proceedings, i.e. during holidays.
During the nation’s early history, Congress would take months-long breaks from Washington, and presidents could use recess appointments to avoid having an important job go unfilled. However, more recently, recess appointments have been used to avoid a fight or rejection from an opposing Senate.
President Bill Clinton made 139 recess appointments and President George W. Bush made 171, though neither used the process for top-level cabinet positions.
President Barack Obama tried to continue the practice, using it 32 times; however, four of those appointments were challenged, and the Supreme Court placed additional restrictions on recess appointments. One of the more relevant of the restrictions is that the Senate must recess for at least ten days for the break to qualify as a recess.
Imagine having to bring 15 Cabinet members on board, as well as White House staff, within the period of time between the election and the Presidential Inauguration. How things have changed since Washington’s first four Cabinet nominees!
As this sprint takes place and we follow along with the President-elect’s nominees and the actions of the Senate, we can do so knowing what to look for each step of the way.
