I could be wrong, but I think this is going to be a failure similar to the border wall. We will see…
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And the delay you cause to everything else you’re trying to do. Under Canning, the Senate would have to go on recess for at least ten days (not counting Sundays) for the Appointments Clause to be triggered. Probably more. But if the Senate just leaves town for two weeks in February…then nothing else is getting done. None of your other nominees are getting their hearings - the 1,200 appointments that need Senate confirmation as well as any judicial nominees. None of your legislative priorities (including the all-important budget and reconciliation bills) are getting worked on.
There’s a reason that the Senate usually doesn’t go on a long break until summer - they’ve got stuff they’re trying to get done. Even if you could get Thune to agree to just send everyone home for a few weeks so that you could try (though possibly fail) to justify a recess appointment…is that really a good choice?
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Until they get prosecuted for their content. (That’s: CON-tent, not con-TENT
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“We are very grateful to the thousands of Americans who have expressed interest in helping us at DOGE. We don’t need more part-time idea generators. We need super high-IQ small-government revolutionaries willing to work 80+ hours per week on unglamorous cost-cutting.”
Let me translate that for you.
“Thanks to the thousands of uninformed Americans who submitted their stupid ideas. Unfortunately, while we depend on your vote, we’re really in need of smart people who are willing to work harder than most of you.”
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Think big. Appoint everyone during one recess.
Steve
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The actual translation is “We are the big shots. We know everything. No kibitzers allowed.” I have seen that mentality exhibited by several honchos.
Steve
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That certainly would be…something. Especially since the most likely outcome is that the courts would hold their appointments invalid under Canning. Can you imagine? The entire federal government found to not lawfully occupy their posts, therefore all of their actions are void?
But if that were on the cards, Thune probably can’t get 50 votes for the recess (if even he were willing to go along with it).
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Just saying in Chinese “May you live in interesting times” is actually a curse. 
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Not sure it would even get that far. They’ll keep taking it to court until they find the rubber stamp they’re looking for. (Supreme Court) or just ignore unfavorable court rulings and whose going to enforce anything? Or here’s another one. Some circuit judge thinks he knows better? Prosecute him. In effect a Slap suit. I know. “Oh, they could never get away with that!” We know they will try it and yes, they can get away with it. Just intimidate and tie things up. In the meantime the program moves ahead.
Buyer’s remorse.
The truth is none of us should want any of this to work.
The tariffs are the one thing that will happen immediately. Our individual net worth will dive. If you are retired better die sooner than planned. If you are poor you just got poorer. If you are middle class that was yesterday.
A huge chunk of flesh will be demanded.
2026 won’t be pretty. There will be zero forgiveness.
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Not a particularly promising start if the goal is to accomplish something. Spending time and effort doing simple things like appointments means less time passing meaningful policies. I suspect this will be an administration of lots of noise but little else.
Its easy to talk about dismantling government but tough to do. Once actual programs get cut, the people affected become pretty loud. And since red states receive a lot of federal government assistance, this will become increasingly difficult politically. See Obamacare.
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Or, appoint everyone as “acting”. iirc, on the last go around, there were a lot of “acting” office holders. No public hearings, to air inconvenient things like sexual harassment. Remember how ugly Justice Thomas’ hearings got?
Steve
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There are limitations with the Vacancy Act. Generally, they must already be a gov employee and often are simply a promotion from within the same department. You can just appoint any rando as Acting XYZ.
Seems unlikely. The most likely way this issue gets into a courtroom is, like Canning, someone challenging an action taken by the recess appointee. If the appointment was unlawful, the district court judge would likely grant a temporary injunction against the action. That would effectively paralyze the appointee, as long as the injunction held. Whether the appointee chooses to act as if they still hold the office, nearly all of the other players that have to interact with the appointee will have to hedge their bets.
So, if we’re talking the AG, it’s hard to move forward with criminal prosecutions where the AG has taken any actions - because that might jeopardize any conviction. It’s hard to enter into plea bargains or settlement agreements or enforcement agreements if they might be undone. Etc. Under Canning, it’s just hard for the appointee to actually do any of the things the President presumably wants them to do, if any action they take is voidable.
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By whom? Ignore it and move forward. Again, who enforces this stuff? In this case it will those engaging in the violations. And pardons for any violators of any pesky injunctions. Go after any judge who gets in the way. Move forward. I’m not saying this is the way it will be. Hopefully your “rose colored glasses” world of hope and viable institutions will still be working. I hope so too. But everything I mentioned in not just on the table they’ve already told us the will use them if they have to. If judges along the way cave and make it easy? It’s the same thing. And who’s going to moderate a rubber stamp legislature?
By the courts.
Agencies can’t just ignore the courts, because they need the courts to do a lot of the things they want to do. DOJ especially. A huge part of their purview involves bringing prosecutions, both civil and criminal. If the courts rule that the AG wasn’t properly appointed, and starts dismissing charges and cases based on that deficiency, what’s DOJ going to do? They don’t actually run prisons or lock people up - they need to get judgments in order to do that.
That’s what happened in Canning. The appointee was perfectly free to keep calling himself an NLRB Board member, and everyone in the Executive branch could keep acting as though he was a valid appointee…but the court wasn’t going to enforce the NLRB’s orders. Which then defeats the purpose of the appointment. Presumably they’re there to do something with the agency (even if only to fire people). But if none of the courts are going to enforce the agency’s actions, then those actions have no impact.
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A nice story and I hope, one that comes true. My previous post still applies. Court this court that? get rid of it. Get rid of it. Step over it. Go after the judge. Get a new judge. And the program moves forward.
But that’s the point - most agency programs can’t “move forward” if they’re losing in court. Take DOJ. Their “program” is mostly prosecuting criminal and civil cases against people and firms who break federal law. They can’t do that if the judge finds that their actions are unlawful. They can’t “get rid of it” or “step over it” - they need to prevail in court.
If your recess appointment is found to be unlawful, then that appointee can’t do anything for you. Every action they take is subsequently uncertain. Private parties won’t obey their rules or follow their directives, because they lack legal basis (or at least any certainty); courts won’t enforce their actions or impose sanctions. It doesn’t matter if Matt Gaetz says he’s the Attorney General - if the courts say he’s not the AG, then he can’t really do any part of his job, because his agency can’t function without the courts accepting the legitimacy of their actions.
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I see an interesting conversation between a couple others has taken place since your post.
I looked up the provisions of the Act you mentioned. Yes, there are required qualifications to being elegible to be an “acting” appointee, but the Act also allows wholesale appointment of “acting” officials for 500 days.
So, TFG ignores the qualifications of the Act, and appoints whoever he wants. If someone tries to enforce the qualifications of the Act, TFG goes to court, claiming the qualifications are an “unconstitutional infringement of his Presidential authority to hire who he wishes”. By the time it has worked through the courts, a few years have lapsed. And that is only if someone is willing to try and enforce the law.
Steve
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Meanwhile, “brainworm” Kennedy is nominated to head HHS.
Steve
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