Whenever there's an incoming administration, there's a big to-do about Cabinet nominations. So what does The Cabinet DO? How has it evolved since Washington's administration? What is the process for appointing someone to the cabinet? And finally, how could a president appoint someone without approval from the Senate?
Taking us through all the cabinetry is Dan Cassino, professor of government and politics at Farleigh Dickinson University.
To see Civics 101 in book form, check out A User's Guide to Democracy: How America Works by Hannah McCarthy and Nick Capodice, featuring illustrations by Tom Toro.
Transcript
Speaker1: [00:00:01] New Senate Majority Leader John Thune, incoming next year. Today seemed fairly open to Trump's idea of bypassing Senate approval of his cabinet picks by using recess appointments. Is that how this is going to go down?
Speaker2: [00:00:13] Checking your rule book that you won't find anything in there that says a dog can't play.
Nick Capodice: [00:00:18] You're listening to Civics 101. I'm Nick Capodice, I'm.
Hannah McCarthy: [00:00:21] Hannah McCarthy.
Nick Capodice: [00:00:22] And today we are answering not one, but two listener questions. We've gotten some amazing ones already. If you want to ask one, just give us a holler at Civics 101 at nhpr.org. Okay. For today, first off, we've got Maddie from Nashville, Tennessee.
Speaker5: [00:00:39] Oh, I love Nashville.
Nick Capodice: [00:00:40] Me too. I love the city and the Robert Altman movie.
Speaker6: [00:00:43] Don't take it easy now. This isn't Dallas, it's Nashville.
Nick Capodice: [00:00:47] And here's what Maddie wrote to us. I just recently started listening to and very much enjoying your podcast. Can you explain what the president's cabinet does and why they are important? How much power does the chief of staff actually have? Every political TV show, not the strongest frame of reference, I know, makes it seem like the president is just a puppet for their cabinet and the people behind them.
Hannah McCarthy: [00:01:10] Interesting. Excellent question. Mattie.
Nick Capodice: [00:01:13] Truly. All right.
Hannah McCarthy: [00:01:14] And what is the other listener question?
Nick Capodice: [00:01:15] Yes. It's tied to Maddie's. This one is from Chris McAdams in Atlanta, GA.
Hannah McCarthy: [00:01:20] Another beautiful city.
Nick Capodice: [00:01:22] Absolutely. Chris writes. One thing I keep seeing alluded to is that the president elect can invoke article two, section two of the Constitution to recess Congress and make recess appointments not requiring Senate confirmation. Oh, yeah.
Hannah McCarthy: [00:01:38] Can we get into that? Can that really happen?
Nick Capodice: [00:01:40] We will get into that. Hannah, we're going to answer Maddie first with sort of a broad overview of the cabinet, and then we'll get to Chris's question as there are rumblings of president elect Donald Trump doing just that recess in Congress to ram through politically unpopular cabinet appointments.
Speaker7: [00:01:57] Kennedy has been critical of vaccine safety and called for the removal of fluoride from public water.
Nick Capodice: [00:02:02] I do think the.
Speaker8: [00:02:03] Only way Matt Gaetz will become attorney general is by a recess appointment. I don't think he can get the votes to be confirmed through regular order.
Nick Capodice: [00:02:10] All right, so push aside the garlic powder and get the red pepper flakes, cause today it's all about the cabinet.
Hannah McCarthy: [00:02:18] Okay. The cabinet. These are the heads of various executive departments. Secretary of state of the Treasury, of Defense, etc., of all 15 executive departments.
Nick Capodice: [00:02:31] Right. And this includes the Attorney General, who is the head of the Justice Department. And sometimes other people are in the cabinet too. I'm going to get to that.
Hannah McCarthy: [00:02:38] Is the cabinet in the Constitution.
Dan Cassino: [00:02:40] The cabinet is actually not in the Constitution.
Nick Capodice: [00:02:43] To know him is to love him. Our first face on the Civics 101 Mount Rushmore, Dan Cassino. You want to do the other part?
Hannah McCarthy: [00:02:50] Of course I do. Professor of government and politics at Fairleigh Dickinson University. I never get tired of saying it.
Nick Capodice: [00:02:56] Did you ever notice that his initials are DC? I never. He probably gets that all the time.
Dan Cassino: [00:03:01] The cabinet is implied by the Constitution, but not actually in there. Nowhere in the constitution say cabinet. We actually have no indication that anyone in the US called it a cabinet until late in George Washington's first term. Cabinet actually is a word like privy. It actually just means like a closet, like a small room. And the deal was that the king in the in England would consult with his closest advisors in a small room, hence a cabinet. And so cabinet becomes a term that just means close advisors in the Constitution. There was the idea that the president would have a group of people that he would consult with. All we get in the Constitution about the first cabinet is that the president is can require the heads of agencies to issue him reports.
Hannah McCarthy: [00:03:43] What were those first cabinet level agencies?
Nick Capodice: [00:03:47] Well, we had the Secretary of State who was in charge of overseeing foreign affairs. Secretary of War feels pretty self-explanatory. Yeah. Secretary of the Treasury. Also pretty self-explanatory. And the attorney general? The chief law enforcement officer in the country.
Dan Cassino: [00:04:02] It's not clear what exactly the job is supposed to be, and we're all just making this up as we go along. It's all very vague. Remember, this is article two of the Constitution. So we were trying to knock this out and get it done before Rhode Island showed up and messed everything up. So it's all a little vague.
Nick Capodice: [00:04:15] And like so many things, if we want to understand the cabinet, we got to look at the first people who had the job.
Dan Cassino: [00:04:22] George Washington, though, really does make use of the cabinet in a way that nobody after him really does, which is George Washington says, you know what? I'm not the sharpest tool in the shed. I'm not the smartest guy I know. Right? The smartest guys I know are Thomas Jefferson and Alexander Hamilton.
Hannah McCarthy: [00:04:37] Jefferson being the first secretary of state and Hamilton being the first secretary of the Treasury. Right.
Nick Capodice: [00:04:44] And there were the less remembered Edmund Randolph and Henry Knox serving as our first AG and Secretary of War, Respectively.
Dan Cassino: [00:04:51] So what Washington does, whenever he faces a difficult problem, he actually convenes his cabinet. He brings together Hamilton and Jefferson and, you know, the other people that no one really cares about. And he says, what am I supposed to do about this problem? And he has them argue, and then he often gives them homework where he will say, all right, you guys have both made a good argument. Go home and write me down what you think I should do. And Washington then looks at what they've written and then just does whatever Alexander Hamilton said to do. So the cabinets under Washington winds up being phenomenally important, because this is not only where we get the precedent for how cabinet is going to work, but also this is where the party system in America comes from.
Hannah McCarthy: [00:05:29] Hang on. How does Washington's cabinet create America's party system?
Nick Capodice: [00:05:33] Well, Hamilton and Jefferson famously did not agree a lot of the time. So to convince Washington they would each go out and try to build up public support for their ideas, and they did this by creating Salacious newspapers that talk smack about each other and bolster their own arguments. Dueling newspapers, dueling ideas. And we end up with our first dueling parties, the Hamiltonian Federalists versus the Jeffersonian Democratic-Republicans.
Hannah McCarthy: [00:06:05] Quick question here. Is the vice president in the cabinet.
Nick Capodice: [00:06:09] Ah, well, they are now, but they weren't initially.
Hannah McCarthy: [00:06:12] Why is that?
Dan Cassino: [00:06:13] The excuse for this is that Washington was very concerned with separation of powers, you know, separation between the executive branch and the legislative branch. And because the vice president has his only powers in the Constitution are legislative in nature. He presides over the Senate. Washington said it was inappropriate for the vice president to be involved in executive deliberations, because that would be a violation of separation of powers. Also, we think he just didn't like John Adams very much. And so this is a good excuse to not have John Adams hanging around.
Speaker10: [00:06:39] He's obnoxious and disliked. Did you know that I hadn't heard.
Nick Capodice: [00:06:43] Now, this did change. In the 20th century. Vice presidents began to be included in the cabinet.
Hannah McCarthy: [00:06:48] So Vice President Kamala Harris is in President Joe Biden's cabinet. She is a member of the executive branch, but an officer of the legislative branch. Exactly. Now, Dan said Washington listened to his cabinet, but other presidents did not.
Nick Capodice: [00:07:05] Yeah. Further administrations were far less likely to seek advice from the cabinet.
Hannah McCarthy: [00:07:11] What was the role of the cabinet, if not to tell the president what they thought they should do?
Dan Cassino: [00:07:18] If we're in the 19th in 19th century politics, the cabinet is important because the cabinet actually controls a lot of the opportunities for corruption and graft. You know, 19th century politics is all about getting kickbacks. Post Andrew Jackson, you put all your own people in power, right? So the federal government is just filled up with all of your points. If you're a Democrat, you appoint Democrats. If you're a Republican, you appoint Republicans, if you're a Whig, if you're a Whig, you don't do anything. But that's the whole point of the Whig Party. So both parties are just filling up everything with their own people. And so you have to put someone in charge of that to make sure that you are putting the right people in place. And how do you know the right people, the loyal members of your party, and they're going to kick back some portion of their salary to in order to fund the party and keep the party machine rolling. The cabinet leaders wind up being really important to local politics if we are in the 19th century. The person who's likely to take over as president, the heir apparent for the current president, is not actually the vice president. It's really the secretary of state is the person who's going to take over as the likely next president. So the secretary of state is a really important job.
Hannah McCarthy: [00:08:18] And how many secretaries of state became president.
Nick Capodice: [00:08:21] In the 1800s? An awful lot. Six of them in about 50 years. But that trend ended with James Buchanan in 1850. He was our last one.
Dan Cassino: [00:08:31] So Congress, over the course of the 19th century into the 20th century, establishes more and more executive departments. And this gets constitutionally really iffy because think about why Congress is doing this. So let's take something like, I don't know, the Commerce Department, Commerce Department. Their job is to kind of standardize measurements and standardize and facilitate trade things like. All right, how wide should railroad gauges be so that railroads can go between new Jersey and Delaware? Because Delaware might have a different thing than new Jersey. So we have to standardize all of this, right? This all makes sense. You walk into the hardware store, says, oh, this is an A1 nail versus an A9 nail or A4 paper. Someone has to standardize what the size of nails are and what size of papers. This all is great and important. Except this is something that Congress is supposed to be doing in the Constitution, right? This is regulating interstate trade. That's Congress's job. And what Congress decides with increasing frequency over the course of the 19th and into the 20th century, is we're supposed to do this, but boy, this is beneath our notice. We don't want to bother with this stuff. Also, we don't know what we're doing. We don't know what size should paper be. What should the railroad gauges be? We don't know. So what are we going to do? I've got an idea. Let's hire a bunch of experts and then empower those experts to do whatever they feel like they need to do?
Hannah McCarthy: [00:09:43] Okay, so this ties into what you've talked about with Dan before in that episode that you made on who exactly writes bills. This is the idea that the executive branch is responsible for all of the nuts and bolts, so to speak, of running things. So they tell Congress what bills they should write.
Nick Capodice: [00:10:03] Yeah. Congress is like you experts. You all just take care of it, and we'll just agree with whatever you say and a shift starts to happen. Hannah. The cabinet becomes a body that starts to run things and has less of a role in advising the president.
Dan Cassino: [00:10:18] The role of the cabinet throughout the course of the 20th century changes dramatically. So we at one extreme, we've got George Washington, who is relying heavily on the cabinet. Right. It's almost like a plural executive. Right. He's going through and consulting with the cabinet over almost every major decision he's going through. As the cabinet gets bigger, though, as we start adding more and more departments. Presidents are consulting with it less and less and less because as the government gets more complicated, the role of members of the cabinet, the role of heads of departments changes. Because suddenly your job isn't like Thomas Jefferson to have big ideas about what the government should be doing. Your job is actually running a bureaucracy, right? Department heads are now much more like the Secretary of the Treasury is not just some guy with big ideas about how to develop America. He's running what's essentially a giant corporation. He's the CEO of the Treasury Department. You know, the Secretary of state is in charge of the State Department. These are huge organizations.
Hannah McCarthy: [00:11:15] Pause here for one second. The executive branch, these various secretaries and the agencies under them, they run things, right? Right. But the president is the head of the executive branch. So who is in charge of whom? Is it the secretary of. For example, agriculture. Who has the final say when it comes to farm subsidies or is it the president?
Nick Capodice: [00:11:40] A very good question, Hannah.
Dan Cassino: [00:11:42] So if I, as Congress, have now delegated power to executive to executive department, have I delegated that power to the president? Because that's where all the executive power is. Have I given up my power to the president or to a department? And that gets really tricky. We have inklings of the problems with this going back to the Jackson administration, right. Andrew Jackson, not really one of your founding fathers. He is an outsider. He is blowing everything up when he gets into office. He doesn't really care for the norms and rules that have gone in before him in the presidency. So when he's in office, he has this big fight over the National bank, Biddle's bank war, right? Andrew Jackson does not trust banks Fidelity Fiduciary Bank. He doesn't trust banks. If you ask him, he'll say it's because of the South Sea bubble, something that happened several hundred years beforehand, the.
Hannah McCarthy: [00:12:29] South Sea bubble.
Nick Capodice: [00:12:31] I'm not going to get into it. The South Sea Company was involved in enslaving people and whaling it collapsed. Long story short, Jackson hated the idea of a national bank. He hated it so much, in fact, that he used his veto power to try to get rid of our national bank. But it still stuck around. So to put a stake in its heart, he went to his Secretary of the Treasury and says, take all of the money out of the national bank.
Dan Cassino: [00:12:58] And Secretary Treasury says, no, that would be that would cause a financial crisis. By the way, he was totally right. It caused a giant financial crisis. What does Jackson do? He fires him and says, next guy in line, hey, you go pull the mighty National Bank or not, and eventually get somebody who will in fact pull the money out of the national Bank. This, of course, is going to upset Congress. Like, wait, we delegated this power to the Secretary of the Treasury, not to Andrew Jackson. What the heck, right. Is he allowed to do this or not? And the answer is, well, he did it. So I guess we're playing by Airbud rules here.
Speaker6: [00:13:27] Ain't no rules to the dog. Can't play basketball.
Dan Cassino: [00:13:30] There's nothing that says he can't do it. So he's going to go ahead and make that happen.
Nick Capodice: [00:13:36] And this happens again and again. Andrew Johnson directly opposes reconstruction policy passed by the majority Republican Congress. So Johnson wanted to fire the Secretary of war. But Congress had passed a law saying a president couldn't do that without consent of the Senate.
Dan Cassino: [00:13:54] So what does Johnson do? He fires the secretary of war. Congress decides we're going to impeach this guy. We're going to impeach Johnson because he violated the law.
Nick Capodice: [00:14:01] And to be clear, he was not removed from office by one vote.
Hannah McCarthy: [00:14:07] Before we move on, you said earlier that other people could be in the cabinet in addition to these executive department heads who can be in the cabinet.
Nick Capodice: [00:14:19] So like we mentioned earlier, the veep is now in the cabinet. But in addition to the executive heads, it can change. For example, as a rule, if you're a Democratic president, the head of the EPA is going to be in your cabinet if you're a Republican, they won't. Sometimes the ambassador to the United Nations is in it, sometimes they're not.
Hannah McCarthy: [00:14:39] Now, you know, Nick, that I'm a big fan of Leo McGarry.
Speaker11: [00:14:44] Tired of it. Year after year after year after year, having to choose between the lesser of who cares? Of trying to get myself excited about a candidate who can speak in complete sentences, of setting the bar so low I can hardly look at it. They say a good man can't get elected president. I don't believe that. Do you?
Speaker12: [00:15:05] You think I'm that man? Yes.
Hannah McCarthy: [00:15:09] For anyone out there who has not stayed up late at night sobbing over the better seasons of The West Wing, Leo McGarry is President Bartlet's chief of staff. Nick is the chief of staff in the cabinet.
Nick Capodice: [00:15:21] They have been recently and this started with some regularity under Richard Nixon.
Hannah McCarthy: [00:15:26] What exactly does the Chief of staff do?
Dan Cassino: [00:15:29] The chief of staff's job under most presidents and does vary by presence. Chief of staff's job in general, is to control access to the president, to decide which problems are big and important enough that the president has to pay attention to these things. And in effective presidencies, he is the guy who has to go in and tell everybody, no, you're important, but you don't get to talk to the president. You have to control access to to the president and ineffective presidencies. No one does that. Um, George Stephanopoulos talked about the early years of the Clinton administration, talked about it being like a bunch of eight year olds playing soccer. Right. Like, everyone in theory has a position, but in practice, everyone's just running around chasing the ball. If you remember the year the Clinton administration and I do, because I'm old, you would notice. Yeah. They didn't get a whole heck of a lot done because Bill Clinton was off talking to everybody and having a great time and not actually focusing on the stuff you probably should have been focusing on.
Hannah McCarthy: [00:16:16] Nick, I feel like I have a handle on the cabinet now. I would love to talk about appointing people to the cabinet.
Nick Capodice: [00:16:23] You got it. We will talk about Senate confirmation, and we're going to get to Chris's question about appointing people during a recess. But first we got to take a quick break.
Hannah McCarthy: [00:16:32] And before that break, a reminder, you can drop us a line at Civics 101 at nhpr.org. That is our email address. Ask us your questions and we will do what we can as quickly as we can. And thank you. We're back. You're listening to Civics 101 today. It is all about the cabinet. So, Nick, appointments to the cabinet happen after a president assumes office, even though to varying degrees, especially as we have seen lately, most incoming administrations make a lot of political hay by revealing who they intend to nominate.
Speaker13: [00:17:14] Is what we're seeing. President elect Trump do not just in the health space, but in the legal space and in the national security space, a desire based on the results of the election and Trump's belief that his supporters want him to do this to seriously disrupt the status quo.
Hannah McCarthy: [00:17:29] Does every cabinet member require Senate approval?
Nick Capodice: [00:17:34] They do indeed. And here is the constitutional chunk tied to this. The old two, two, two. Article two, section two, clause two. Quote he and he. Here is the president in the Constitution he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for.
Hannah McCarthy: [00:18:00] And how many votes in the Senate does a nominee need to be appointed?
Nick Capodice: [00:18:06] It's a simple majority 51 votes. Here is Dan Cassino again with the Senate confirmation process.
Dan Cassino: [00:18:13] So all of these agency heads, of course, are subject first to approval by the Senate and second, to being brought up to the Senate and being forced to ask questions as part of Congress's oversight procedures. And there's been a big fight over the course of the 20th century as to to what extent Congress actually can make them answer questions. So if we go back to the 19th century, that was, of course, Congress can call up anyone they want and ask them whatever questions they want. Part of the oversight. Fine. By the time we get to the 20th century, not so much. Think of Dwight Eisenhower. When Eisenhower was in office. We've got the Red scare. We've got the House un-American Activities Committee. And Dwight Eisenhower is just sick of these guys. Sick of Joe McCarthy. Joe McCarthy is demanding all the security files and everyone in the State Department and Eisenhower just goes, yeah, no.
Speaker10: [00:19:00] But once, once you have this United States covered with a network, a network of professors and teachers who are getting their orders from Moscow.
Hannah McCarthy: [00:19:13] No relation. I feel like I have to say that every time Joe McCarthy comes up.
Nick Capodice: [00:19:17] I am in full support of that. Hannah.
Dan Cassino: [00:19:19] Now, this is actually a huge power grab on the part of the executive to say, yeah, we're going to ignore your oversight power. We're not going to do it. But basically everyone hates Joe McCarthy at this point. So we're like, yeah, all right, that's fine. And not realizing that sets up a precedent where future presidents can go, yeah, I don't want this guy to testify. So he's not going to testify.
Hannah McCarthy: [00:19:35] Wait, so nobody testifies before the Senate anymore? No no.
Nick Capodice: [00:19:39] No no. They do. This is one of those rare times where a branch sets a precedent that gives them a ton of unchecked power. But then they say, no, let's just opt to do things the more traditional way.
Hannah McCarthy: [00:19:52] Why?
Nick Capodice: [00:19:53] Because in the end, everybody has a government to run.
Dan Cassino: [00:19:58] At the end of the day, a president can certainly have a big fight with Congress over who testifies, over how much, over what an agency head does. You can fight Congress over that. But the more you fight Congress over that, the less likely Congress is to give you what you want when you're trying to negotiate with them later. And so Congress, as a result, just presidents. Yeah. Just, you know, play nice because we're going to need these guys to pass a budget next year. And we don't want to burn all of our bridges right now.
Hannah McCarthy: [00:20:22] I appreciate that, but let's say that there is a chief executive who does not care a bit about burning bridges, and they put forward a nominee who will almost certainly fail Senate confirmation. How could such a president hypothetically bypass this whole process?
Speaker14: [00:20:42] You said that recess appointments are on the table. That's a key demand from president elect Donald Trump.
Speaker15: [00:20:46] Will you move forward with that? Well, what we're going to do is make sure that we are processing his nominees in a way that gets them into those positions so they can implement his agenda. Um, how that happens remains to be seen.
Nick Capodice: [00:21:01] So I asked Dan Chris question directly about recess appointments, and here's what he said.
Dan Cassino: [00:21:06] Let's talk a little bit about what questions that one of the listeners had, which is about recess appointments, recess appointments. This is in the Constitution. The idea is that if Congress isn't around because remember early part of the Republic before the 18th and 19th century Congress wasn't around. Most of the time they were back in their home districts. And so in the Constitution says, you know, if there's no if Congress is not around, the president can make a recess appointment. And presidents did this with great regularity up until the 1970s. And why did it end in the 1970s, end of the 1970s? Because of Richard Nixon. Presidents were making recess appointments, and presidents at the same time were also making use of what we call pocket vetoes.
Hannah McCarthy: [00:21:45] I need a quick refresher here on the pocket veto.
Nick Capodice: [00:21:48] Absolutely. So after Congress passes a bill, it goes to the president's desk. After that, the president has ten days to sign it into law or to veto it, to say, no, I don't want this bill or it does get signed into law. Now, a veto can be overridden if two thirds of both houses say, no, no, no, we really want this bill. And this has happened about a hundred times in US history. But a pocket veto is different. It is very sneaky. Bill goes to the president's desk. President doesn't do anything. And before ten days are up, Congress goes out of session. The bill is in effect vetoed. In fact, it is perma vetoed. It can't go back to Congress for a potential override. And this a pocket veto has happened about a thousand times.
Dan Cassino: [00:22:39] So we have these two powers, recess appointments and the pocket veto that come into effect whenever Congress is out of session. So Richard Nixon, in his long term attempts to increase executive power, decide to push the envelope with what counts as Congress being in recess. So, sure, Congress between sessions, whether it's in Congress, adjourns in the middle of December and tell the new Congress comes in in January. All right. That's a big recess. Cool. What if Congress goes away for a long weekend? Is that a recess? And the answer is Richard Nixon says, looks like a recess to me. You guys aren't around. So even if I have a 2 or 3 day recess, I'm going to put in appointments. You know, I'm going to put in these appointments and I'm going to even pocket veto bills because Congress is out of session. Yeah. So Nixon pushes the envelope with this in Congress, jealous of its power, jealous of its authority, pushes back. And Congress has an ingenious plan to make sure the president can't make recess appointments and can't pocket veto bills, which is Congress decides. What if we just never went out of session? How do you do it? Well, every 2 or 3 days when Congress is out of session, you send someone and by someone. For most of the 1970s named Joe Biden.
Speaker10: [00:23:54] The youngest new face in the U.S. Senate next year will be that of Democrat Joseph Biden of Delaware. So young, in fact, that at the time of his election on November 7th, Biden was not yet old enough to serve.
Dan Cassino: [00:24:06] Because he can just hop on the train and go back and go back to the Senate. And he just gavels the Senate in, says, all right, sentence in session. Oh, shoot. No one else is here. Um. All right. Cool, I guess. Sentence out of session. And he does that every couple of days. And now the Senate is never at a session for more than 2 or 3 days at a time. So therefore there can be no recess appointments and there can be no pocket vetoes because the Senate is never gone.
Hannah McCarthy: [00:24:29] Has any president in recent history made recess appointments?
Nick Capodice: [00:24:34] No. Not really. President Obama did make some. But then the Supreme Court contested them because the recess was only a few days. The Supreme Court ruled a recess has to be at least ten days for it to be one where appointments can be made.
Hannah McCarthy: [00:24:49] Back to Chris's question can a president make, like force Congress to recess?
Dan Cassino: [00:24:55] There is a clause in the Constitution that says, if the House and the Senate cannot agree on whether or not to adjourn, then the president can force them to adjourn and can call them back when he wants to. Now, this has literally never happened. No president has ever done this. And we first started hearing inklings. The first time I ever heard about this was actually towards the tail end of the first Trump administration in 2020, when there were conservative legal minds saying that the president should go ahead and do this, should go ahead and adjourn the House and the Senate. And if the president adjourns the House, Senate. Now, they're in recess. And if you adjourn them for ten days now, then recess. So if you give it ten days now, you can make a recess appointment. And that would be considered kosher.
Nick Capodice: [00:25:41] Just a quick note here, Hannah. Recess appointments only last one year.
Hannah McCarthy: [00:25:46] Really? Just a.
Nick Capodice: [00:25:47] Year. Just a year.
Dan Cassino: [00:25:48] These scores would be temporary, right? It goes until the basically a year and change until the end of the next session of Congress. But that could work. There is also some question about the extent to which you could actually do judicial recess appointments. Could you put a judge in office via a recess appointment? And the answer is air bud rules. Ain't no rules to the dog. Can't play Played basketball. There's nothing that says you can't do it. That would be weird to put a judge in office and have them go away after one year. But you could do it in theory. So the way it would work is the House of Representatives was controlled at this point by Republicans and controlled by Republicans would say, we want to recess right now, and they would send a message to the Senate saying, we're going to recess in the Senate would, in theory, go either say, okay, cool, we're in recess, at which point you're in recess. You go away for ten days, the president can make a recess appointment, or they go, no, we don't want a recess in a sense as that. Then you've got a disagreement between the House and the Senate about whether or not to recess. And then we have this never before used clause in the Constitution that kick in. The president could go. Now, you're both in recess, and I'll call you back when I want you, in theory, in ten days.
Hannah McCarthy: [00:26:52] So it could be done. It just has not been done right.
Nick Capodice: [00:26:59] And this brings me to the big point here. Regardless of what you feel politically, it has been made abundantly clear that several of Trump's nominees for his cabinet are unpopular, even within the Republican Party. And it doesn't just damage the potential nominee. If they have a grueling nomination process, it gets in the way of a new president's agenda.
Dan Cassino: [00:27:20] It's generally a bad idea to put up controversial nominations, because then that's all you're going to talk about for the first couple of months of your administration. And this is the time when you need to be passing a bunch of bills. And you can't, because the Senate's all just doing these nominations. It's generally a much better idea if you want to pass bills to get non-controversial people in there. And if you want controversial people, great. Put them in the executive office of the president, put them in the executive agents rather than executive officers, so they don't have to go through the Senate. The other side of this is that if you do decide to do recess appointments, if you do decide to do pocket vetoes, you are poisoning your relationship with Congress, right? Because Congress, if you go to Congress, say, hey, I need you to pass this bill for me. And you say, by the way, if you don't, I'm going to do it myself. Well, then why is Congress going to. Why is a senator going to put himself at risk by doing by doing you a favor if you're just going to do it yourself? Right. The Senate, I think much more in the House, is very jealous of its prerogatives.
Dan Cassino: [00:28:18] And they've historically been very jealous of prerogatives, even when the Senate and the president are of the same party, they don't want to lose power. Right. They are very worried about the power of the minority and the power of the Senate, because everyone in the Senate, almost everyone in the Senate has been in the majority and in the minority. And anyone who's in the minority in the Senate can tell you it is a miserable experience, leavened by the fact that you actually do have some power, you have some influence, you can get some things done, or you can at least stop some things from happening. And so they don't want to give up that power. And so it would be a stretch, I think, for the Senate to conspire with the president to remove power from the Senate. And if you do force things through, you've now poisoned your relationship because you're going to have to go back to these guys later and say, hey, can we pass a budget or something? And if you have upset them, if you have declared that they are not relevant, it's going to be real hard to go back and do that.
Nick Capodice: [00:29:11] Last thing about the cabinet here, Hannah. Do you remember in the recent episode about how votes are counted? We talked about people who don't trust the system, you know, deciding to run for county clerk or something like that.
Hannah McCarthy: [00:29:22] Oh, yeah. Yeah. Of course, people who think that the system is rigged and so they want to peek inside at that fantasy of this, you know, smoke filled room with a bunch of ballots just lying around. And then they get in there and they learn that there is no such room. And, you know, it's extremely bureaucratic and fraud proof in there. And they're like, well, this is more boring than I thought.
Nick Capodice: [00:29:47] Yeah. Dan said a similar thing can happen in the cabinet when, you know, a president appoints someone to head an agency because they're super loyal to the president and will do whatever the president asks, sometimes even try to destroy an agency because the president doesn't like it. But something tends to happen to these cabinet officers.
Dan Cassino: [00:30:07] Cabinet officers. There's a continuing problem. This goes back really to Richard Nixon, right? So Richard Nixon had cabinet departments. He was trying to get rid of that. He did not like. He put loyalists in those cabinet departments that also didn't like those cabinet departments. Right. So you put a guy in charge of the EPA, you know, who used to work for an oil company in the hopes that he will shut everything down. You put someone in charge of the Justice Department that doesn't want to bring lawsuits on behalf of segregation. So you do that. And even Richard Nixon and Ronald Reagan after him, and every president who comes after it winds up facing the same problem, which is when you put people in charge of agencies, they go to work at that agency every day. They they work with the people who are running the agency, the people in that agency, the people working with the EPA believe deeply in the mission of the EPA. The people working with the department believe deeply in the mission of the Justice Department. And you work with those people every day. And after a while, you wind up going, hey, I think these people are doing some good stuff, and this is a problem that every president faces. You put someone in charge of NASA, they wind up thinking NASA is a good thing, and you think you put someone in loyalist who's going to help you shut down NASA, or shut down the EPA, or shut down the part of education, and they wind up being on the side of all the people they're working with. This cabinet is much less about loyalty and much more about being part of this institutional culture. The more you, the longer the time you spend there, the more people tend to agree. Yeah, this is a good idea.
Nick Capodice: [00:31:26] But Hanna, presidents can kill an agency. They can do it. They can just zero out a budget request. They can tell everyone in the agency, you know, pack your bags. Get out of here. A president can just refuse to appoint anyone at all to head an agency. You could.
Dan Cassino: [00:31:43] Do that. Try and not spend the money that Congress has given to you. But again, anytime you do something like that, you're running into Congress. And Congress, especially in a president's second term, is really worried about their own prerogatives, because if I'm a member of Congress, I'm a member of the House of Representatives. Yeah, I'm up for election every two years, but I also have a 95% reelection rate. If I know this joke is over here for four years, I know 90% chance I'm gonna be here six years from now. I'm not going to give up a whole lot to help somebody who's going to be gone in four years. So Congress is jealous of its prerogatives. And, of course, that's the constitutional design. Congress is supposed to be very jealous of its prerogatives. And whatever president does, they're going to have to deal in the end, with Congress and with Congress trying to hold on to its own power.
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