Lawfare Daily: Congressional Power and the Confirmation Process, with Mike Stern and Donald Sherman
Nov 27, 2024
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Mike Stern, a congressional law expert and former Senior Counsel to the U.S. House, joins Donald Sherman, Executive Director at CREW, to discuss the Senate confirmation process amid changing political tides. They delve into how Senate Democrats can wield their influence for key nominations and the importance of thorough oversight. The conversation also explores the intricacies of recess appointments and the constitutional debates surrounding them, highlighting the balance of power between the President and Congress.
The Senate must act decisively to confirm key nominees and uphold oversight to maintain checks and balances in government.
The potential misuse of recess appointments could undermine the confirmation process, challenging the separation of powers and national security.
Deep dives
Strategic Use of Senate Power
Senate Democrats need to leverage their majority status effectively before the new Congress begins. There are several contentious nominees from the President-elect that require thorough oversight and scrutiny. It is crucial for the Senate to confirm key Inspector General appointments, particularly one overseeing the IRS, given the recent attempts to empower the executive branch against nonprofit organizations. By conducting hearings to address the qualifications and backgrounds of these nominees, the Senate can assert its checks and balances ahead of the impending transition.
Concerns Over Confirmation Processes
The potential for the next administration to bypass traditional FBI background checks during the nomination process raises serious red flags. Establishing such a precedent could undermine the integrity of the confirmation process, jeopardizing national security and the credibility of appointees. Democratic senators could challenge this expected shift by demanding proper background checks and ensuring thorough evaluations before any hearings. Continuing to uphold these standards is vital for maintaining trust in governmental institutions and the nominees themselves.
Implications of Recess Appointments
The possibility of using recess appointments to place nominees without Senate consent represents a significant constitutional challenge. The discussion centers around whether a President can declare a recess unilaterally, especially when Congress holds pro forma sessions. If such actions were pursued, it could trigger legal disputes regarding the validity of these appointments and their adherence to the intention of the recess appointments clause. Establishing a legal and historical precedent on this matter is crucial for the separation of powers and the role of the Senate in overseeing appointments.
Potential Oversight Challenges in the New Congress
With a transition to potential Republican majorities, congressional oversight will come under scrutiny, particularly concerning the role of Inspectors General. There are concerns that the new administration may attempt to dismiss these officials as part of a broader political strategy, which could negatively impact accountability in government. Additionally, the wielding of oversight powers may shift towards political ends, targeting critics within and outside the administration. A robust and bipartisan commitment to oversight will be essential to safeguard institutional integrity and protect public interests.
Molly Reynolds, Senior Fellow at Brookings and Senior Editor at Lawfare, sits down with Mike Stern, a lawyer specializing in congressional legal issues and former Senior Counsel to the U.S. House of Representatives, and Donald Sherman, Executive Director and Chief Counsel at CREW, to discuss the Senate confirmation process and expectations for congressional oversight in the 119th Congress. They discuss the tools available to the Senate now and after the start of the new Congress in January, legal questions related to President-elect Trump’s potential plans for recess appointments, and what issues related to congressional oversight to watch next year.