Recess Appointments and Originalism

If facing resistance from the Senate, the incoming Trump administration has indicated it would like to utilise 'recess appointments' for incoming cabinet members - a provision granted in the Constitution. The new Senate majority leader John Thune has signalled he may be willing to facilitate this by taking the body into recess for no reason other than allowing Trump to push his cabinet nominees through.

Now the original context of the recess appointment clause was that of an agrarian society. Once Congress had ended its session it would not be easy to get everyone back in order to fill a sudden vacancy due to death or resignation. As such, the president could fill the post on a tentative basis.

In other words it was a measure for a time in which the Senate could not easily be recalled - and in a timely manner. In some cases the cabinet post might be critical and a delay could (in theory) harm the nation and its security.

It was meant as a temporary measure - a unique moment in which the 'advice and consent' function of the Senate (a check on Executive power) could be set aside for the sake of need.

In modern times the Senate can easily be recalled in a matter of days if not hours and as such there's really little reason for the recess clause to be utilized.

Is it obsolete? If so, the Originalist school of Constitutional jurisprudence has a serious problem. It would mean that aspects of the Constitution might be dependent on context and could be reckoned out of date.

Is it valid? Well, given that the Senate can be recalled easily enough, one would have to say that even if valid - it's largely non-applicable.

Either way, its utilisation has changed due to its context. It's now being used in a different way - to force through candidates that would face resistance.

And then Originalist claims have a bigger problem with the way the GOP has attempted to use it. George Bush pushed John Bolton through as UN Ambassador in 2005 - because he would not have cleared the Senate otherwise. His hostility to the UN was (and is) well known and so to appoint him was rightly deemed problematic. The same is true with numerous Trump appointees who seem set to dismantle the departments they will be entrusted to lead.

And so if the concept of the recess appointment can change and be used (and ruled legal by the court) as a means of political maneuvering - then once again Originalism has a big problem. It suggests that the Constitution's provisions can change and be reapplied in new ways over time. In fact it is exactly this sort of issue that indicates Originalism is actually a legal farce.
Far more important is the idea of checks and balances and the Senate's ability to screen incoming cabinet members and judges as a way to restrain the ability of the Executive to fill its rolls with 'yes men' - the very thing Trump is trying to do. This is the very thing the Founders were trying to avoid and the recess function has been hijacked by political operatives.

And so we find that the GOP lawmakers in reality care nothing about the Constitution which they wave the flag and pretend to champion or the values of the Founders. In this case, they're abdicating their responsibility in order to facilitate an authoritarian administration. How that's 'patriotic' is beyond me. Apparently patriotism is a fluid term that changes its meaning as needed - the only real need (and end) is for their faction to wield power.

So much for Originalism and the legacy of the Founders. Apparently making America great again means destroying the legal and republican foundations upon which it was built. I will freely grant the nation created in 1787 no longer exists and hasn't for more than a century. But lip service was always paid - an attempt was made to outwardly conform to the law and the values of the state. They've completely abandoned the principles and are in the process of creating a new state. They're trying to keep the forms and paint the rust to give the illusion of continuity but are in reality tearing down what was left and preparing to build something new - with a host of revisionist historians and mythologizers laying the groundwork. And did I mention the Christian Right is at the forefront of all this? These are the same people that used to talk about integrity and character. But since they sold their souls to power - to the sword and mammon, we know see what these fraudulent scoundrels are really all about.