Can Trump constitutionally install his nominees with recess appointments? Would Scalia be 'aghast'?
President-elect Donald Trump in Palm Beach, Florida, in November 2022. (Photo by Andrew Harnik/The Associated Press)
Updated: Can President-elect Donald Trump use recess appointments to install his Cabinet nominees?
A 2014 U.S. Supreme Court decision that blocked recess appointments by former President Barack Obama shows a path forward. But some commentators are suggesting that conservatives on the current court could repudiate the opinion and narrow that path.
Trump raised the idea of recess appointments in a post on X, formerly known as Twitter, writing Nov. 10 that any new U.S. Senate leader must agree to recess appointments.
“We need positions filled immediately!” Trump wrote.
Article II, Section 2 of the U.S. Constitution provides that a president nominates officers of the United States “with the advice and consent of the Senate,” according to an overview by the Guardian.
The recess appointments clause in Section 2 provides, however, that a president “shall have power to fill up all vacancies that may happen during the recess of the Senate” by granting commissions that expire at the end of the next session.
Trump’s plan could play out with a concurrent resolution by the U.S. House of Representatives to adjourn the House and Senate, according to Edward Whelan, a senior fellow at the Ethics and Public Policy Center, a conservative Washington, D.C.-based think tank and advocacy group.
The Senate could adopt the resolution, with an adjournment of at least 10 days, during which Trump makes his recess appointments, Whelan wrote at the National Review.
An “obscure and never-before-used provision of the Constitution,” Article II, Section 3, could be used if the Senate and the House fail to go along with Trump’s call for adjournment, according to an op-ed in the Washington Post by Whelan. The provision states that “in case of disagreement” between the houses of Congress “with respect to the time of adjournment,” a president “may adjourn them to such time as he shall think proper.”
Trump would then call his adjournment lasting at least 10 days and would make his recess appointments during the intrasession recess.
And if there is a legal challenge, the 2014 Supreme Court decision would come into play, according to a post at Balls and Strikes by Madiba K. Dennie, an attorney, a columnist and the author of The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take it Back.
The decision, NLRB v. Canning, held that Obama lacked the power to make recess appointments during a three-day recess because the period was too short. Looking to historical practice, the opinion by then-Justice Stephen Breyer said a recess of less than 10 days is “presumptively too short” for a recess appointment.
At the time, the Senate was holding pro forma sessions every Tuesday and Friday in an effort to block recess appointments by Obama.
A concurrence by then-Justice Antonin Scalia would have gone further than Breyer’s opinion, according to Balls and Strikes. Scalia said recess appointments can only be made between formal intersession breaks of Congress—which are the breaks between legislative sessions—and only when vacancies happen during those breaks.
Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito joined Scalia’s opinion.
The Supreme Court might adopt Scalia’s position, Whelan wrote in another post at the National Review. Roberts, Thomas and Alito already indicated that they agree with Scalia’s concurrence.
And “it’s a very safe bet” that Justice Neil Gorsuch, Justice Brett Kavanaugh and Justice Amy Coney Barrett would agree if “looking at the issues afresh,” Whelan wrote. They may not be so inclined now, however, because of stare decisis or justiciability issues.
If Scalia was alive today, Whelan wrote in the Washington Post, he “would be aghast at the notion” that a president could call an intrasession recess for bypassing Senate consent to nominations.
The debate over recess appointments came amid Trump’s plan to nominate former U.S. Rep. Matt Gaetz of Florida as the U.S. attorney general. Gaetz withdrew Thursday.
Hat tip to the Volokh Conspiracy and How Appealing.
See also:
House speaker moves to block Senate Judiciary Committee from seeing Gaetz ethics report
Gaetz resigned days before ethics investigation report expected
Updated Nov. 21 at 4:15 p.m. to report on the nomination withdrawal of former U.S. Rep. Matt Gaetz of Florida.
