Harry Reid, the former Democrat leader of the U.S. Senate, left the Senate in 2017 and died in 2021, but his ghost must still be haunting the chamber. How else can one explain why the Republican majority is continuing the blockade Reid initiated back in 2007 to prevent a Republican president (George W. Bush) from using recess appointments to get around the various roadblocks Reid put in place to delay confirming Bush’s nominees?
As of July 22, there were 256 nominations pending in the Senate. It has been six months since Donald Trump has been inaugurated and, in that time, only 86 nominees have been confirmed. Vital leadership posts in numerous government agencies remain unfilled, severely handicapping the president’s ability to make the changes that are needed—and that were supported by 77 million Americans who voted for him in the 2024 election—to reduce the size and scope of the bloated executive branch.
Not a single U.S. attorney—the lawyers responsible for vital criminal prosecutions all over the country—has yet been confirmed, leading to fiascoes like Democrat-appointed federal judges refusing to reappoint Alina Habba as the temporary U.S. Attorney in New Jersey. The president has been forced to yank her nomination from the Senate so she can continue to serve as the acting U.S. attorney, all because her confirmation has been held up.
There is no justifiable reason for this situation to exist. Or for the current Senate to continue Reid’s political strategy.
So, what are we talking about? We’re talking about the pro forma sessions that Reid implemented in 2007 so that the Senate is never formally in a “recess” as outlined in the Constitution. That prevents the president from appointing federal officers—who can start serving immediately —to fill positions that otherwise require Senate confirmation (about 1,200 positions).
Section 2 of Article II of the Constitution provides that “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.”
In plain English, this means that when the Senate is not in session because senators have fled Washington to return to their home states and the Senate is unable to conduct any business—such as confirming nominees—the president can fill those open slots in the executive branch, whether it is a U.S. attorney or an assistant secretary in some cabinet position.
Those appointments only last until the congressional session ends. Thus, anyone appointed now in the 119th Congress could only serve until the congressional session ends. That would give the Senate time to process the regular nomination of someone the president has recess-appointed and hold a vote on that person’s confirmation to a full term.
It is important to note, as liberal Justice Stephen Breyer wrote for a unanimous Supreme Court in NLRB v. Canning (2014), “Presidents have made recess appointments since the beginning of the Republic,” B.R. (Before Reid).
Such appointments have occurred during both “inter-session recesses,” which are breaks between formal sessions of the Senate, and “intra-session recesses,” which are breaks in the midst of a formal session.
The first intra-session recess appointment was by President Andrew Johnson in 1867. But because, according to the court, Congress has shortened its inter-session breaks and “taken longer and more frequent intra-session breaks” since 1929, presidents have used recess appointments during intra-session breaks much more frequently in the past 100 years.
When the current Senate takes its usual long summer break in August, for example, that will amount to an intra-session break. But not officially.
Why? Because Harry Reid implemented a process in which, during a long break like the one planned for August, a lone senator walks into the Senate chamber every three days, gavels the Senate into session, conducts no business whatsoever, and then immediately gavels the Senate out of session. Thus, the Senate is supposedly never in an intra-session recess that would allow the president to exercise his constitutional recess appointment authority.
In the Canning decision, the Supreme Court said that a three-day break was not long enough to be considered a formal recess. The court held that a minimum break of at least 10 days was required to count as a formal recess. In other words, the president can fill vacant offices with recess appointments any time the Senate stands in adjournment for 10 days or more. And that recess authority applies even if the adjournment is in the middle of a session of Congress and even if the vacancies arose before the adjournment, not during the adjournment.
Why have these pro forma sessions continued? Why is the process Harry Reid put in place to handicap a prior Republican president being supported by Republican senators currently in office?
There is no justification for this. If there is one thing we know for certain, it is this: If Democrats still controlled the Senate, Kamala Harris was the president, and a Republican minority was slowing down and obstructing confirmation of her nominees, Democrats would immediately end the pro forma sessions so Harris could exercise her recess appointment authority and get her people into key positions in the executive branch.
As Sen. Mike Lee, R-Utah, said recently, when it comes to all of these pending nominations, senators need to either “stay & get the job done … or recess & let President Trump make recess appointments, as authorized by the Constitution. The obstruction & the Deep State rule it produces must end now.”
I couldn’t have said it better myself.
