- - Tuesday, April 25, 2017

ANALYSIS/OPINION:

Desperate times call forth diabolical pleasures, and what could give more pleasure than stopping the obstructionist Democrats dead in their tracks.

There are more than 500 unfilled executive branch positions and more than 120 judicial vacancies. If the Democrats decide to require a minimum of 30 hours of debate on each nominee, as they are entitled to do under Senate rules, confirming all of President Trump’s nominees could take, essentially, forever — i.e., President Trump’s whole first term. This is the revenge of the sore losers.

Mr. Trump has said he doesn’t need to fill all the positions, and that is technically true. But he has to fill many of them if he is going to get control of the federal bureaucracy, which he must do if he is to fulfill his oath to take care that the laws be faithfully executed.

The solution to the problem is simple, unconventional and not without precedent. Mr. Trump should, pursuant to Article II, Section 2, Clause 3 of the Constitution, simply appoint hundreds of people to the vacant positions during a congressional recess.

It is true that recess appointments are normally thought of as one-off operations. But there is no reason why 500 people couldn’t be appointed during a recess.

In 1903, more than a half-century before modern cesium atomic clocks (which are accurate to one second in 1,400,000 years), Teddy Roosevelt made 193 recess appointments during — a generous word, under the circumstance — the fractional nanosecond when, as the gavel hit the desk, one congressional session ended and the next began. Congress was not amused.

Barack Obama tried the recess appointment gambit, but if he spent more than a nanosecond studying the rules, it didn’t show — though, more likely, he did know the rules but thought he could get away with breaking them. He didn’t. His recess appointment of three people to the National Labor Relations Board while the Senate was on a three-day break was invalidated by the Supreme Court in National Labor Relations Board v. Noel Canning. The court held that the three-day break was not a recess. The vote was 9-0, the kind of lopsided decision that stimulates Hillary Clinton to tweeting. The court indicated that the president may use the recess appointment power only during a Senate recess of 10 days or longer.

Mr. Trump can ask Senate Majority Leader Mitch McConnell to recess the Senate for 11 days (one day extra, to play it safe) and on Day 11, appoint 500 people to executive branch positions, and perhaps a few to the federal bench as well.

The recess appointees could serve until the end of the next session of Congress, i.e., almost two years, which is about as long as many executive branch appointees serve anyway.

Even though the solution to the problem is easy, we should ask: Is this a good idea? In a better world, the answer would certainly be no. Conservatives should always be suspicious of the exercise of power by the executive.

But the unhinged Democrats’ obstruction is quite beyond normal and calls for a similar response. For years — decades, actually — a liberal Supreme Court by its decisions has “enacted” legislation that Democrats were unable to get Congress to enact. Now, as the Democrats are loath to give up the legislating power of the Supreme Court (hence the stonewalling of Judge Neil Gorsuch), so are they loath to allow the executive branch to function properly.

Of course, the real problem is that the country is seriously divided. It no longer has a common politics. The progressive liberals, heirs of Woodrow Wilson, Franklin Roosevelt, Lyndon Johnson and Barack Obama, devotees of the administrative regulatory state and the ‘60s counterculture, just don’t have the same concept of government and its proper role as the conservative Trump people, heirs of Calvin Coolidge and Ronald Reagan, and free marketeers tempered by concerns for neighborhood, custom and social stability. The progressive liberals have lost the confidence of the country, as is demonstrated not just by the 2016 presidential election but by state and local elections over the past six years. Their time is over. They are going.

But they are not going quietly. Instead, they are obstructing the governing process, which is supposed to carry out the will of the people as expressed at the ballot box.

That is why Mr. Trump, channeling his inner Teddy Roosevelt, should take the desperate measure of appointing executive branch personnel wholesale. He can revel diabolically in the discomfort of the sore losers who seek to obstruct (the duration of which discomfort, and the attendant Schadenfreude, will be measurable by a tick-tockingly, dilly-dallying pendulum clock) while teaching them the lesson that obstruction has a price: losing the opportunity to have the Senate advise and consent.

• Daniel Oliver is chairman of the board of the Education and Research Institute and a director of Citizens for the Republic.


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