What are recess agreements and why would Trump want them?

How are federal officials appointed?

The Constitution gives the president the power to appoint ambassadors, judges, and “other officers of the United States,” subject to “the advice and consent of the Senate.” Today, more than 1,000 senior positions in the federal government require confirmation by the Senate, making the process of nominating and appointing officials a frequent source of tension between the executive and legislative branches, especially during periods of divided government.

Senators have at times delayed the confirmation process to extract concessions from the White House, sometimes on issues unrelated to filling the vacancy. But the framers of the Constitution viewed the division of authority between presidential nominations and confirmations in the Senate as a way to promote good government through better qualified officials.

What are break agreements?

The Senate was not designed to be in continuous session, and the vagaries of 18th-century communications and transportation meant that weeks could pass before lawmakers could reconvene for an emergency. To keep the government staffed, the Constitution allows the president to fill vacancies while the Senate is in recess, but these committees expire at the end of the next session of Congress. That means a recess appointee cannot hold office for more than two years, the length of a congressional session.

How were break agreements used?

In practice, impatient presidents have sometimes used the power to make an appointment during recess to circumvent an unyielding Senate. Perhaps the most ambitious episode occurred on December 7, 1903, when the second session of the 58th Congress was to begin immediately after the first session had ended. President Theodore Roosevelt took advantage of that split-second pause to make 193 recess appointments.

More recently, Ronald Reagan and George W. Bush each made more than 150 recess appointments during their two terms as presidents. Barack Obama used this power less frequently, but it was his attempt to appoint four members of the National Labor Relations Board on recess that prompted the Supreme Court to restrict the practice.

The court ruled unanimously in 2014 that Obama exceeded his authority. Five justices, citing centuries of historical practice, found that the president could make such temporary appointments if the Senate had been out of business for at least 10 days. The four most conservative justices, three of whom remain on the court, would have gone even further. Justice Antonin Scalia said the appointment power was outdated during the recess. “The need for which it was designed no longer exists, and its only remaining usefulness is the despicable purpose of allowing the President to circumvent the Senate’s role in the nomination process,” he wrote.

In practice, however, the decision made it easy for the Senate to avoid recess appointments by convening pro forma sessions during de facto recess within ten-day periods.

If Republicans will control the Senate, what benefit does Trump gain from bypassing it?

Nominees can be confirmed by a simple majority vote in the Senate, but the confirmation process can be a difficult one. If Republicans allow Trump to install officials without the advice and consent of the Senate, the newly elected president could in theory build out his roster of top officials more quickly. It would also limit public scrutiny and deprive Democratic senators of the opportunity to question Trump nominees, since candidates typically must submit background materials and testify before Senate committees. Eliminating a confirmation vote removes the risk that a handful of defectors in the Senate could scuttle a highly controversial nominee.

What have GOP senators said so far?

Republicans vying to become Senate majority leader have made statements that open the door to the idea that the Senate should be adjourned long enough to allow Trump to appoint at least some officials without Senate approval. “100% agree,” Florida Sen. Rick Scott, a favorite of Trump allies, said in a social media post. “I will do whatever it takes to get your nominations through as quickly as possible.”

Are there other ways to temporarily fill high-level government vacancies?

The Vacancies Act specifies how many federal positions must be filled if a Senate-confirmed candidate is not available. Typically, the first assistant to the vacant position becomes the acting official, or the President may designate another Senate-confirmed official or a federal officer of comparable rank to serve as acting officeholder. However, boards and committees cannot be filled through the Vacancies Act, and some statutes specify the chain of succession at certain agencies.

In status-conscious Washington, recess appointees are treated as if they have been confirmed by the Senate, which conveys prestige and a degree of respect. In previous administrations, acting officials have tended to behave with greater caution than Senate-confirmed appointees.

This explanatory article may be updated periodically.

Write to Jess Bravin at [email protected]