President Donald Trump should make history by using his constitutional power to recall the Senate (but not the House) in August, canceling the August recess, and force the Senate to stay in session five (or six?) days per week until the Senate confirms a record number of federal judges and fills key positions in his administration to enact his America First agenda.
Article II, Section 3 of the Constitution provides that the president has the power to “convene both Houses, or either of them.” President Trump can call the Senate back into session while leaving the house in recess. No president has ever used that power to recall just one chamber—the Senate—for the specific purpose of confirming nominees.
Congress goes on recess every August, which in election years is critical campaigning time in their home states, especially in years when (as in 2018) voters are particularly (and rightly) fed up with Washington, DC. Every day back home is a day when a senator or congressman can attend town halls and backyard barbeques, promising the voters that the lawmaker stands with those voters, and railing against the Swamp that many of them actually belong to as card-carrying members.
President Trump is not shy about taking unprecedented action (for example, moving the U.S. embassy in Israel to Jerusalem). Forcing senators back to D.C. to confirm his well-qualified nominees would be a historic move that would be an unmitigated victory.
Even though the Senate has confirmed a record number of appellate judges at this point, there are even more judicial vacancies today than on January 20, 2017, when President Trump was inaugurated. With the exception of 1991—when Congress created 85 new judgeships—there are more judicial vacancies today than at any point in American history: There are 142 current vacancies with 30 more than are verified to open up in the coming months, for a total of 172 judgeships that need to be filled immediately.
President Trump is also rightly frustrated that the Senate has failed to fill key positions in his administration, part of Democrats’ strategy to slow down the president’s America First agenda by depriving him of the political appointees who supervise more than two million federal workers to produce results for the voters.
Take the Department of Justice (DOJ) for example. Many of the key divisions have lacked a head since Obama left office. The assistant attorney general positions in the Civil Division, Criminal Division, Civil Rights Division, and others, have been vacant for 17 months, despite the fact that Jody Hunt, Brian Benczkowski, and Eric Dreiband have been waiting since last year for a vote on the floor of the U.S. Senate.
Personnel is policy. When the president orders a new policy direction, it takes political appointees in the relevant agencies to direct their civil-service subordinates to implement that new policy. Without those appointees—both Schedule PAS (Senate-confirmed) appointees in the senior ranks and Schedule C appointees in the junior ranks—the Swamp continues to do whatever it wants, ignoring the commander in chief and the will of the American people.
This is a perfect example of how good policy can make good politics. The politics on this situation would be solid gold. President Trump has exactly the right communication style to rally the American people by saying, “I told those lazy bums to get back to D.C. and do their job!”
And confirming judicial and executive nominees is a winning issue. In 2016, 21 percent of voters said the Supreme Court was their top issue. Those voters went for Trump over Clinton by a margin of 57 to 41 – a 16-point margin.
President Trump can be the no-nonsense CEO that the American people hired, who refuses to be tied down by tradition and conventional wisdom, demanding results for the American people. Trump voters in Indiana, Ohio, West Virginia, Michigan, Missouri, Florida, and other Trump states with vulnerable Democratic senators would love it. There is nothing those Democratic senators can say in protest that would not dig their hole even deeper.
The Constitution grants him the power to fix this. President Trump should let senators know by tweet: “Start working full five-days weeks and get my nominees confirmed, or enjoy spending August on Capitol Hill!”
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
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