Hacking Congress

     Political commentators and professional viewers-with-alarm have been having a field day with President-elect (and convicted felon) Donald Trump's* nominees for key jobs in his Administration, especially Fox News talking head Pete Hegseth, Secretary of Defense; former Representative Tulsi Gabbard, Director of National Intelligence; and Representative Matt  Gaetz, Attorney General.

     All three have been subject to somewhat sniffy observations that they've got to get through Senate vetting and confirmation before assuming their posts, and the GOP has an extremely slim majority in a body that is traditionally quite protective of their power.  The Senate, we're told, will dig in their heels.  The GOP hasn't a single vote to give up in that body, and so these three have barely a chance of getting through the process.

     Not so fast.  The nominees appear to be quite confident.  Matt Gaetz even went so far as to resign from the U. S. House of Representatives.†  Mr. Trump has already posted on social media, calling for a workaround: "Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments [...]."  Charlie Sykes thinks the incoming President Pro Tem might do just that, tradition and Separation of Powers be damned.  --But you see, he doesn't have to.

     Here's how it works, with everyone ducking blame: Article II, Section 2, Clause 3 of the Constitution give the President the power to make appointments when Congress is in recess, appointments which stand until the end of the next session.  And Article I, Section 5, Clause 4 requires the House and Senate to mutually consent if they adjourn for more than three days.  If they cannot agree, if one body wants to cut school for a week and the other vows stubbornly to remain on the job?  Why, under Article II, Section 3, it falls to the President: "...in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper...."  This power has never been exercised, but all it takes is the House proposing an adjournment the Senate finds unacceptable and hey, presto: Mr. Trump's got the magic wand.  The Speaker can profess innocence -- his House members just wanted to go fishing, or hear from constituents; the President Pro Tem of the Senate can thunder and fume -- how dare the House treat this weighty matter so lightly!  The House and Senate fail to agree and Mr. Trump pulls the plug, after which they can all knock off work and repair to the bar, or perhaps somebody's yacht, free and clear.  Whatever happens after that is on Mr. Trump, not them.

     That's how it can work.  Or perhaps the threat alone will be enough.  Or maybe we've all been played, and these three particularly egregious choices are no more than distractions, slipped into the deal to be discarded while other, slightly less objectionable picks sail through.

     Our Constitution is hackable.  It was written by men who thought the people applying it wouldn't be trying to pull a fast one.  They did their best to not leave any openings, but nobody -- and no document -- is perfect.
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* After some thought, I have decided to give convicted felon and adjudicated sexual assaulter Donald Trump a recognition I have accorded to only one or two other Presidents: I'm going to mention his worst behavior at least once whenever his name comes up.  Woodrow Wilson and Andrew Jackson were virulent racists; in particular, Wilson resegregated the Federal civil service, which had become a colorblind meritocracy.  In so doing, he helped set the stage for the racial unrest that followed, over a generation later.  Mr. Trump is a scofflaw -- and we're about to see just how far he will follow that particular star.
 
† Credit where credit is due!  I'd like to thank Mr. Trump for doing what the courts and his House peers were unable to do: get Matt Gaetz out of Congress.  It's something.