Isaac Saul (6:01)

Thanks, Isaac, and welcome, everybody. Here are your quick hits for today. First up, President Joe Biden hosted President elect Trump at the White House, where the two discussed the presidential transition of power as well as the wars in Ukraine and Gaza. Number two, CIA official Asif Rahman was arrested in Cambodia on charges of violating the Espionage act for allegedly leaking classified documents about Israel's preparations for a retaliatory strike on Iran. Number three, the 12 month inflation rate was 2.6% in October, up 0.2% from the month prior. Housing and food prices drove the increase, according to the Bureau of Labor Statistics. Number four, Special Counsel Jack Smith and his team plan to resign before President elect Trump's inauguration in January. And number five, the Pennsylvania Senate race between Senator Bob Casey and Republican Dave McCormick will go to an automatic recount. Counties must finish the recount by November 26th.

John Maul (7:05)

President elect Trump says he wants the next Senate Republican leader, the majority leader, to allow what we've discussed earlier called recess appointments. This would allow the White House to temporarily bypass confirmation votes for high level appointments when the Senate is out of session. And in a post on social media, Trump said, quote, sometimes the votes can.

Isaac Saul (7:21)

Take two years or more. This is what they did four years.

John Maul (7:24)

Ago and we cannot let it happen again. We need positions filled immediately. Recess appointment power is enshrined in our Constitution. Typically, the Constitution requires that the United States Senate confirm high level federal officials, cabinet officials, federal judges and the like. But it also says that when the Senate is in recess, basically when the senators are not in session, when they've all dispersed to their home states, the president can appoint officials through a recess appointment, which does not require Senate confirmation. So historically this has been something that presidents will use.

Isaac Saul (7:54)

Typically when they suspect expect that the.

John Maul (7:56)

Senate will not confirm the nominee they'd like to put in the job.

Isaac Saul (8:02)

On Sunday, President elect Donald Trump tweeted that any Republican senator hoping to obtain the position of majority leader would have to approve of recess appointments for his cabinet nominees. Typically, nominees for cabinet positions, executive offices or high level ambassadorships undergo a hearing where they are asked questions by members of the Senate, who then vote on whether to confirm an appointee. Only a simple majority is needed for confirmation, however. Article II of the Constitution allows for recess appointments, which were designed to prevent vacancies in the event the Senate is adjourned for an extended time. Presidents of both parties have used recess appointments to avoid confirmation hearings in the past, but the practice was widely curtailed after the Supreme Court's 2014 decision undoing President Obama's recess appointments to the National Labor Relations Board. Part of the Court's decision was that Congress had to be out of session for at least 10 days for a recess appointment to take place, and Senate leaders have recently used three day recesses with pro forma sessions to block the process from taking place. This week, President elect Donald Trump has tapped a number of future cabinet members and high level executive staff for positions within his incoming administration. However, several of Trump's governor Christi Noem for Secretary of Department of Homeland Security, Representative Mack Gates for Attorney General, former Representative Tulsi Gabbard for Director of National Intelligence, and veteran and former Fox News anchor Pete Hegseth for Secretary of the Department of Defense are highly controversial and likely to undergo a difficult confirmation process. The new Congress will convene on January 3, 2025, and Trump will formally nominate his selections after he is sworn in on January 20th. At that time, the Senate or House leader may call a recess. However, a recess of three days or more must be approved by a majority in each chamber. Therefore, in order to pass recess appointments, Trump needs a Senate leader willing to call a recess and both a Senate and House that will pass the request. Republicans will control both chambers in 2025. On Wednesday, Senator John Thune was elected Senate Majority leader over Senators John Cornyn and Rick Scott in a secret ballot election. Among Senate Republicans, Trump surrogates like Elon Musk, Charlie Kirk and Vivek Ramaswamy had pushed for Scott, but he was eliminated in the first round of voting. Thune has stated that the Senate must quickly and decisively confirm the president elects nominees, adding, all options are on the table to make that happen, including recess appointments. Today we'll get into what the left and the right are saying about the recess appointments and then Isaac's take.

John Maul (10:37)

We'll be right back after this quick break.

Isaac Saul (10:43)

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Isaac Saul (12:03)

All right, first up, let's start with what the left is saying. The left opposes Trump's push for recess appointments, arguing the move would be an abdication of the Senate's oversight duties. Some suggest that Trump is using recess appointments to test senators loyalty. Others say the move highlights Trump's authoritarian impulses. The Washington Post editorial board said Senate Republicans should not surrender to Trump on appointments. Mr. Trump wants opportunities to circumvent the Senate confirmation process, even though Republicans will have a clear majority of seats, at least 52, according to the latest count, signaling his intention to elevate appointees whom even some Republicans cannot tolerate. Senators should refuse to squander their constitutional prerogatives in this way, the board wrote. In general, presidents should be able to assemble the executive branch teams they want. The bar for opposing a cabinet nominee should be high, but it should not be insurmountable. Mr. Trump tried to skirt the Senate confirmation process during his first term, when his party held a narrower majority. He routinely abused the Federal Vacancies Reform act to install acting secretaries with dubious legal authority. The board said senators should fight his efforts to evade their scrutiny in his second term. Regardless of what the next Senate GOP leader has promised Mr. Trump, there will be ample opportunities for objections. Republicans as well as Democrats should take them, the economists asked. Why is Donald Trump keen to use recess appointments? Mr. Trump has previously threatened to oblige the Senate to go into recess. The Constitution requires each House to seek the other's permission to adjourn for more than three days. In 2020, Democratic obstruction compelled the Senate to stay in session so as to prevent Mr. Trump from making recess appointments. Frustrated, he talked about exercising a never before used constitutional power that allows a president to force Congress to adjourn. He did not go through with it, and the maneuver might not have worked if he had tried, the authors wrote. This time, too, it's not clear how serious Mr. Trump is about using recess appointments. Mr. Trump may just be unwilling to wait for confirmation hearings to happen. He may also worry that some Republicans might refuse to confirm some of his appointees, the authors added. The Senate's responsibility to confirm appointees is supposed to be a check on presidential power. By asking would be leaders of the chamber to forego that responsibility? In some circumstances, Mr. Trump may be indicating that he expects unquestioning loyalty. In the New York Times, Charlie Savage framed Trump's push as an early test of a radical second term. The demand to weaken checks and balances and take for himself some of the legislative branch's usual power underscored Mr. Trump's authoritarian impulses. While there is no obvious legal obstacle to Mr. Trump's request, it would be an extraordinary violation of constitutional norms, savage wrote. There is no historical precedent for a deliberate and wholesale abandonment by the Senate of its function of deciding whether to confirm or reject the president's choices to bestow with government power. While previous presidents have occasionally made some recess appointments, none has ever tried to systematically bypass Senate approval to unilaterally fill their administrations. It remains to be seen whether Republican senators, fearful of Mr. Trump's ability to end their careers by backing a primary challenger, will give up one of the most important powers and prerogatives of their office. All right, that is it for what the left is saying. Which brings us to what the right is saying. The right is mixed on the proposal, with many expressing hesitancy about the Senate voluntarily handing its power to the president. Some say recess appointments are a smart way to circumvent Democratic obstructionism. Others note that relying on recess appointments could delay Trump's agenda in different ways. National Review's editors argued Donald Trump doesn't need recess appointments. One can comprehend the president elect's desire to hit the ground running, especially given that in our era of sprawling government. There are indeed too many positions that require confirmation. Nevertheless, his request is wholly inappropriate within the American system of government and ought to be rejected with prejudice, the editor said. The core purpose of our unique system of separated powers is to reduce the authority that any one person or faction enjoys with the federal apparatus. Were a prospective Senate majority leader to vow to help Trump get around this arrangement, he would not only be undermining that principle, but doing so by abdicating his own oath of office and weakening the institution that he had been selected to protect. As president, Trump controls the executive branch. He has no power over the legislature. Republicans understood this in 2012 when they successfully sued to prevent Barack Obama from making illegal recess appointments to the National Labor Relations Board. They understood it in 2016 when they successfully blocked Obama from appointing Merrick Garland to the Supreme Court. They understood it in 2021 when they blocked President Biden from nominating Neera Tanden, David Chipman and others to the executive branch. Nothing has changed since then other than that the shoe for now, is on the other foot. In the Wall street journal, Don McGahn wrote about why Trump needs recess appointments during his first term, President Trump struggled to staff senior government posts. Some 1,200 jobs require Senate confirmation. The upper chamber moved extraordinarily slowly in processing nominations, which routinely took several months or even years. The average length of a Senate confirmation process during Mr. Trump's first term was more than twice as long as under President Reagan. As a result, much of the federal government wasn't staffed by the president's nominees, McGahn said. Without recess appointments, it is doubtful President Trump can fulfill his constitutional mandate to ensure that the executive branch officials are supporting the policies the people voted for. After his recent and decisive election victory, he asked the Senate to return to its long standing tradition of taking recesses long enough for the president to make some recess appointments. This is a good idea, mcgahn wrote. Returning to the long standing tradition of recess appointments would ensure that every elected president is able to staff the government with senior officials who share his policy vision. It would reduce the extraordinary time demands on the Senate to process presidential nominees. It would prevent senators from gratuitously delaying nominations. And it would help ensure that the executive branch implements the policies the American people voted for. In the Washington Examiner, Ramsey Touchberry suggested Trump's demand for Senate recess appointments could undercut his agenda. President elect Donald Trump's bid to shake up how the Senate confirms his Cabinet and other appointments has more potential to weaken his agenda. Rather than kickstart it, Touchberry said being off of work for extended periods could undermine Congressional Republicans stated objective of passing an ambitious legislative agenda within the first 100 days of Trump's second term presidency and the political message they are ready to get to work for the country. Democrats could put up a fight to recessing, which only needs a simple majority, by flooding a recess resolution with endless amendments and debate. Republicans would need 60 votes to put an end to it and support from at least seven Democrats, touchberry wrote. Perhaps most importantly, Senate Republicans already plan to jumpstart the transition process when they take control on January 3rd, so they are ready to confirm nominees when Trump takes office on January 20th. This includes holding confirmation hearings and vetting individuals in the weeks between the new Congress and Trump entering the White House, further undercutting the argument for recess appointments. All right, let's head over to Isaac for his take.

John Maul (19:21)

All right, that is it for what the left and the right are saying. Which brings us to my take. So 24 hours ago, my take on this issue looks something like this. Trump's demand for the Senate Majority Leader to support recess appointments is probably just a test of loyalty and not something that should prompt genuine alarm about the separation of powers between the executive and legislative branches. But after the past few days reports about who Trump nominated for key posts, I see his call for recess appointments in a different light. I'm going to address a few overarching points before getting into the specifics of Trump's strategy or lack of strategy. First, Democrats really don't have much leverage here. I understand the Trump team's concerns that the minority party could delay the important work of filling Cabinet and other key positions in a timely manner through procedural obstructions. Senate Democrats already seem to be gearing up for a disrupt at every turn type of strategy, so much so that some party members are questioning whether five term Senator Dick Durbin from Illinois has enough energy to lead the fight as the top Democrat on the Judiciary Committee. In that context, I get why Trump would want to move urgently. But remember, while Democrats can delay, there's ultimately nothing they can do to stop Trump from getting his picks confirmed as long as Republicans are behind him. During Trump's first term, when Republicans started with 52 Senate seats, his entire Cabinet was confirmed within the first 100 days. That's faster than Obama's was by one day. While Democrats did obstruct the process for some nominees, many others were held up simply because they needed to sort out their business interests with the Office of Government Ethics. Second, I think writers on the right have made an even stronger case against recess appointments than those on the left. Most left leaning commentators frame Trump's strategy as following authoritarian impulses or as a dangerous power grab. This is part of a trend in how the left criticizes Trump, overusing alarmist terms in ways that devalue them. It's hard to see leveraging a process that is outlined in the Constitution that other presidents before Trump have used regularly as an authoritarian takeover. Instead, I find myself agreeing with writers like National Review's editors, the Dispatches, Chris Steyerwalt and Hot Air's Ed Morrissey. Trump shouldn't need recess appointments with 53 Republican held seats in the Senate, Trump should be able to staff the federal government with the people he thinks are best for the job. That's just an extension of the Democratic will of the people who elected him, and I'd say the same thing about any president. However, recess appointments are a way for a president to avoid a fundamental check on executive power. And in this case, Trump is trying to avoid a check by his own party, which is alarming. When we wrote about Trump's initial cabinet picks on Tuesday, I praised the president elect for selecting respected, competent people like Susie Wiles, Lee Zeldin and Marco Rubio for key roles. Even picks like Stephen Miller and Tom Homan, who I disagree with on approaches to immigration policy, are perfectly capable of enacting the government agenda Trump campaigned on. Of these picks, I suspect the ones that require Senate confirmation to get it without much trouble. But Trump's latest picks suggest he might need recess appointments after all. Tulsi Gabbard is perhaps less controversial than Hegseth or Gates, but her foreign policy record is cause for legitimate concern. Immediately after the pick was announced, intelligence experts on the right and left criticized the pick primarily on the grounds that she is too sympathetic to America's adversaries. Personally, I've always found the most extreme allegations about Gabbard that she's a Russian agent or asset to be laughable. And I respect her staunch anti war stance. But I also have a hard time taking her seriously. After all, days after Putin invaded Ukraine and began ransacking towns and killing civilians, Gabbard is the woman who called for embracing the spirit of aloha. I suspect some establishment Republican senators to balk at her nomination, and I think they should. Pete Hegsest will have an even harder time getting confirmed as secretary of defense. The pick makes sense as a move to shake up the national security establishment, but his inexperience is an issue for a post of this magnitude. I question the wisdom of nominating a Fox News host with little command experience as Secretary of Defense, even if there are some compelling reasons to put a combat veteran in that role. The Department of Defense has serious issues wasteful spending, inventory issues, shaky leadership, and now two major ongoing conflicts. But a leader who rails against the political left as domestic enemies, says women shouldn't serve in combat roles and generally blames all of the military's problems on wokeness, is not the right person to address the DoD's biggest problems. Some Senate Republicans are already expressing doubt about the pick, and I think Hegseth is in for a bruising confirmation fight. And finally, we have Matt Gaetz, who is simply not a good choice for Attorney General. I don't really know how else to say that, and I know some people might disagree, but this guy reeks of ethics issues and sleazy behavior. In the midst of still unproven accusations that he had sex with an underage girl, multiple members of Congress spoke on the record about Gates, showing videos on the floor of Congress of women he had slept with and talking openly about drug fueled sex parties. Even worse, a nonpartisan House ethics group was about to release an apparently damning report on Gates before he resigned yesterday, which prevented the report from coming to light. Gates also lacks the qualifications we typically associate with a role like Attorney General, although inexperience alone isn't a strong reason to oppose his nomination. President John F. Kennedy appointed his 35 year old brother who had never argued a case in court at the time for Attorney General, and Robert F. Kennedy ended up having a very effective tenure. I'm much more skeptical that Gates is a good pick because of the ethical concerns surrounding him and because he does not appear to have the requisite support for confirmation. A lot of smart people have suggested that Gates appointment is some kind of ploy to either give him a graceful exit from Congress amid an ethics investigation or to feed him to the wolves so Trump can get his real pick for Attorney General later. I have to say I find both of these ideas preposterous. Trump was investigated by his own FBI and DOJ during his first term. Then Biden's Attorney General came after him after he left office. He wants to throw a grenade inside the DOJ and see what happens. That is his governing style. For better or for worse, he's going to try earnestly to get Gates, Gabbard and Hegseth appointed, even if he has to use recess appointments to do it. Ironically, I think their nominations actually decrease the chance of Trump being able to get anyone through without Senate support. Each of them individually are so objectionable to so many Republican members of Congress that I suspect some genuine bipartisan pushback is coming. Will all three get blocked? I doubt that, but I'd be shocked if all three made it through, too. John Thune, the Republican from South Dakota, the new Senate majority leader, has a long history of both opposing Trump and adhering to Senate traditions, and he said on Wednesday that he plans to approach the nomination process, quote, the old fashioned way. Furthermore, recess appointments require a recess, and any Senate adjournment of 10 days or longer would need the consent of a majority in the House. That would be an even harder task than just confirming a nominee on a straight vote. Considering Republicans already small House majority is growing smaller by the day, and considering how many enemies Gates has made in the lower chamber, more likely than not Trump will push for recess appointments. The Senate or the House will block it, and the Senate will confirm most, but not all of his selections through the normal confirmation process. And that, by the way, is how it should be. I hope Thune and other Congressional Republicans hold the line. We'll be right back after this quick break. You've been waiting all year and the.

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Not available in all states. All right, that is it for my take. Which brings us to your questions answered. This one's from Julian in New York City. Julian said in a reader question you had a couple of simple answers for how to get money out of politics Restricting members of Congress from being allowed to trade stocks and make active investments while in office and prohibiting politicians from taking jobs as lobbyists or industry regulators after they leave office. Both sound good to me. But I'm wondering, can you think of any unintended consequences that these seemingly common sense ideas might have? I love this question. It's a helpful reminder that writing good policy is hard because common sense ideas will always carry with them unexpected costs. That doesn't mean they're not worth enacting, just that nothing ever comes for free. So what are those costs? Let's start with forbidding members of Congress from trading stocks or making active investments. Obviously, this would disincentivize business oriented people from running for Congress. Another drawback is that if enforced correctly, this rule would make members of Congress pay less attention to the market when maybe being clued into it is helpful for drafting legislation. Lastly, it would invite corruption. If I'm a senator who can't trade stocks and learn that a bill is likely to pass or will soon enter committee, I might want to tell my family, friends or staff to make an investment for me. Either that would create new issues, or we'd have to make congressional staff unable to trade stocks as well, which would make the first two disincentives even costlier. Next, prohibiting politicians from lobbying or regulatory positions after they leave office would prevent experts in legislation from joining firms that draft legislation and prevent experts in the different congressional committees from joining industry regulators. That knowledge strain would hurt lobbying firms and regulatory bodies which do important work in government. Another possible side effect would be the replacement of salaried posts for congressional retirees with stack consultation fees that would be harder to make legal and harder to track. Is this an exhaustive list? No. Does it mean these reforms aren't worth enacting? Not in my opinion. But it is definitely helpful to think about these consequences before pushing for these reforms so we can't anticipate the next problems we'll have to solve. All right, that is it for your questions answered. I'm going to send it back to John for the rest of the pod and I'll see you guys on Sunday. Maybe tomorrow too. We'll see. We're going to try our best to get out a POD version of tomorrow's newsletter, but definitely Sunday. Ari and I are going to chop it up about some of this and the latest news, so we'll see you soon. Either way, have a good one.

Isaac Saul (30:52)

Thanks, Isaac. Here's your under the Radar story for today, folks. Five months after New York Governor Kathy Hochul paused a plan to implement a congestion toll on motorists entering Manhattan below 60th street, the governor announced she's reviving the program. The new plan will reduce the fee that most drivers will pay to enter Midtown and lower Manhattan from $15 to $9, but likely without the extended environmental review process that marred the original effort in delays. Hochul is fast tracking the plan, putting it before the Metropolitan Transit Authority Board for approval next week, and it could go into effect before President elect Trump takes office in January. Hochul faced intense scrutiny from public transit advocates for her decision to pause the program in June, and many speculated that her decision was intended to give vulnerable state Democrats political cover in their campaigns. Now, with the election over, Hochul is framing the reduced fee as a compromise that will help fund New York City's mass transit system while limiting the financial burden on motorists. Gothamist has this story and there's a link in today's episode. Description alright, next up is our numbers section. The approximate number of positions in the executive branch that require senate confirmation is 1,200 to 1,400, according to a 2012 estimate by the Congressional Research Service. The number of recess appointments made by President Bill Clinton was 139. The number of recess appointments made by President George W. Bush was 171. The number of recess appointments made by President Barack Obama was 32. The number of recess appointments made by President Trump and President Joe Biden during their terms was zero. The number of days between Donald Trump's first inauguration and when his full Cabinet was confirmed by The Senate was 97. The median number of days between the official nomination of a presidential Cabinet member and a full Senate vote on their nomination for the four presidential administrations preceding Trump's first term is one. The number of Obama, Bush and Clinton Cabinet nominees, respectively, who failed to be confirmed by The Senate is 3, 1 and 1. The median number of days between the official nomination of Trump's Cabinet members and a full Senate vote on their nomination during Trump's first term was 25. And the number of Trump's first term Cabinet nominees who failed to be confirmed by the Senate was one. And last but not least, our have a nice day story. As a child, Sarah Brice was a patient at Boston Children's Hospital. Now she works at the hospital as the program manager of Culinary Experiences, where she creates exciting meals for children, usually between the ages of 4 and 16, while they undergo treatment. Recently, Bryce hosted a pickle party for Emerson Bass, an eight year old heart transplant candidate. Due to fluid restrictions, Bass has a craving for salty dill spears. So Bryce made Bass pickle making dreams into a reality. Today has this story and there's a link in today's episode description. All right, everybody, that is it for today's episode. As always, if you'd like to support our work, Please go to retangle.com and sign up for a membership. And if you'd like to receive ad free podcasts, including Friday editions and Sunday editions, head over to tanglemedia.supercast.com and sign up for a membership there. Isaac will be here for the Friday edition podcast and then Isaac and Ari will be back for the Sunday podcast and I will return on Monday. For the rest of the crew, this is John Maul signing off. Have a fantastic weekend, y'all. Peace.

John Maul (34:24)

Our podcast is written by me, Isaac Saul, and edited and engineered by John Wall. The script is edited by our managing editor, Ari Weitzman, Will Kabak, Bailey, Saul and Sean Brady. The logo for our podcast was designed by Magdalena Bova, who is also our social media manager. Music for the podcast was produced by Diet75. And if you're looking for more from Tangle, Please go to readtangle.com and check out our website.

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