Letter to Senators Regarding Cabinet Recess Appointments

Intro

I recently posted about Resistbot on BlueSky urging others to write and contact their Senators about Trump trying to appoint his cabinet members during Senate recess. While permitted in by the Constitution this is not a permanent appointment and the ‘acting’ member must still go through the normal process to be awarded the permanent position. This process should not be used as a loophole to bypass Senate scrutiny and public accountability.

The Recess Appointment Clause in Article II, Section 2, Clause 3 reads as:

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.

This clause grants the President power to appoint a temporary Cabinet member, but requires Senate approval during its next session for the member to continue in the position permanently. In this context, the Senate’s responsibility to provide ‘advice and consent’ is essential, as mandated by the Constitution. This is to ensure the proper maintenance of the “checks and balances” the framers of the Constitution envisioned, preventing unchecked authority by the Executive to appoint powerful government officials.

Quick History

The Recess Appointment Clause was placed in the Constitution during a time when travel was slow and Congress was to meet only a few times a year. This allowed the President to appoint a Cabinet member while the Senate was on recess and allow for the functioning of government until the next session. Traditionally, recess appointments were made sparingly as a practical solution when the Senate was unavailable for extended periods of time, as intended. With Congress now meeting regularly and recessing only briefly, the context in which this clause was originally intended has evolved significantly.

President Barack Obama’s use of recess appointments to the National Labor Relations Board (NLRB), led to a legal challenge NLRB v. Noel Canning (2014) which places limits on the president’s recess appointment power or more specifically defined when the Senate is in session. Since the Senate defines its own rules, when it states it’s in session and able to transact Senate business, it is. This ruling significantly limits the time the Senate is considered to be truly ‘in recess,’ thereby restricting the President’s ability to make recess appointments. This has had implications to both President Trump and President Biden, limiting their ability to have recess appointments.

Letter to Senator(s)

Dear Senator [NAME],
I am writing to express my deep concern regarding the potential for permanent cabinet appointments during Senate recess periods. Such actions not only raise questions of legality but also threaten the constitutional balance of powers intended to safeguard our democracy.
The Senate’s role in providing "advice and consent" on appointments to cabinet positions is a crucial responsibility that ensures transparency, accountability, and qualified leadership within the executive branch. Allowing permanent appointments to cabinet positions without Senate oversight during recess periods would undermine this principle and set a dangerous precedent. It would effectively shift a vital Senate responsibility away from Congress, enabling unilateral executive appointments to proceed without the constitutional scrutiny that our founders envisioned.
Recess appointments may serve as a temporary measure, yet they should not circumvent the constitutional checks and balances designed to prevent any branch from accruing undue power. Appointing permanent cabinet members during Senate recesses essentially abdicates a key Senate power, potentially leading to unchecked decisions that affect national policy, security, and administration.
This practice not only weakens the Senate’s role but also risks diminishing public trust in our government. I respectfully urge you and your colleagues to take legislative or procedural steps to protect the Senate’s duty to vet and confirm—or reject—cabinet appointees. Safeguarding this oversight power is essential to preserving the democratic values that make our country strong.
Thank you for your attention to this important issue. I trust that you will take all necessary steps to prevent any erosion of Senate authority regarding executive appointments.

I hope this helps with a little historical context and emphasizes the importance of maintaining this essential safeguard in our government.

Happy Resisting