The Recess Appointment Gambit Makes a Mockery of Senate Advice and Consent

Not every clown in the clown car that will be the second Trump administration must be appointed in conformity with the Constitution's Appointments Clause. For example, people named to White House staff positions--including powerful positions like the Chief of Staff--are not officers of the United States. They can thus be named by the president unilaterally.

Likewise, fake/advisory entities such as the "Department of Government Efficiency" can be headed by whatever ketamine addict and/or vulture-capitalist-turned-political-opportunist the president selects. But some of the highest-profile clowns are being proposed as principal officers who can exercise power only via the Article II, Section 2 procedure (as none of the named clowns currently holds an office that would entitle them to serve in an "acting" capacity pursuant to the Federal Vacancies Reform Act).

Since the abolition of the filibuster for appointments, only a simple majority in the Senate is required to confirm Trump's nominees. Despite grumblings from some Republican Senators about the absurdity of the Gaetz brigade, there is a chance that, if required to vote on the record, they would all (or nearly all) fall in line rather than risk the wrath of the Dear Leader and his brownshirts. True, Republicans elected John Thune as their majority leader over Trump's choice, Rick Scott, but they did so on a secret ballot. Votes to confirm or reject Trump's nominees would be public. And anyway, it's not as though Thune is a never-Trumper.

Speaking with FoxNews last week, Thune did not rule out recessing the Senate so that Trump's picks could be named through recess appointments. But he also noted, correctly, that the House's cooperation would be required. And he said that "the same Republicans" who might vote against one or more of Trump's nominees might "also have a problem voting to put the Senate into recess." That's fair enough, but it's also possible that a handful of Republican Senators who would not want to vote publicly to confirm Matt Gaetz, RFK, Jr., Tulsi Gabbard, and/or Pete Hegseth to the positions for which they are so manifestly unqualified would be willing to tacitly allow their installation by voting to recess the Senate.

Suppose, however, that Thune's speculation is correct--that a handful of Republican Senators are so appalled by Trump's nominees that they would neither vote for their confirmation nor to put the Senate in recess, and that this handful, combined with a wall of opposition from Senate Democrats, suffices to block confirmation. Would Trump be stymied? The answer depends on how one reads some constitutional language that has never been tested.

If the Senate does not vote to recess but the House does, the president arguably has the power to force the Senate into recess. Here's the key language from Article II, Section 3: the president "may, on extraordinary occasions, convene both Houses, or either of them, and 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." At least on one reading, that means that whenever the House and Senate disagree about whether to recess (or adjourn), the president can adjourn them both. If that's right, then even if the Senate doesn't want to go into recess to give Trump the power to make recess appointments but Mike Johnson and the Republican House majority nevertheless vote to recess, Trump can force a Senate recess.

I say that's at best "arguably" the right way to read that language because, as Thomas Berry of the Cato Institute noted on The Volokh Conspiracy on Friday of last week, the president's power to adjourn both houses of Congress does not appear to be freestanding. It is embedded within a clause set off from other provisions by semi-colons. That clause authorizes the president to convene both houses on "extraordinary occasions." Under Berry's narrower reading, the president can adjourn both houses only when they disagree about when to adjourn from an extraordinary session. In the ordinary course of congressional business, there is no presidential power to throw the Senate into recess when it wishes to remain in session.

I think Berry is almost certainly right that that is the best reading of the president's adjournment power. Among other things, if it isn't, then Article III, Section 2 is in conflict with Article I, Section 5, which states: "Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days . . . ." If the broad reading of presidential adjournment power is correct, then the president can require what Article I, Section 5 forbids: adjourning one house without the consent of the other for more than three days.

And to be clear, in order for the broad reading of the president's adjournment power to work as a means of circumventing Senate confirmation proceedings, it needs to encompass forced adjournments of more than three days--of at least ten days in fact. That's because under NLRB v. Noel Canning, absent "very unusual circumstances" such as "a national catastrophe," the Senate must be in recess for at least ten days to trigger the president's power to make recess appointments.

More fundamentally, the broad reading of the president's adjournment power makes a mockery of the Constitution's vesting in the Senate, not the House, of the advice-and-consent power. Any time the House wished to give the president the ability to circumvent the Senate's power to disapprove nominees for up to two years, the House could vote to adjourn for ten days and the president could then force the Senate into recess. The absurdity of that result would be especially apparent in circumstances in which the president's party controls the House but not the Senate. The broad reading of the president's adjournment power would thus convert the Constitution's requirement of Senate advice and consent to appointees into a requirement of de facto acquiescence from either house of Congress.

To be sure, it could be argued, as it was by four Justices in Noel Canning, that the core problem is the Court's holding in that case that the president can make recess appointments even during an intra-session recess of the Senate. After all, the language of Article II, Section 2 empowers the president to make appointments during "the recess of the Senate." The. Singular. Referring to the period between sessions of the Senate. Or so Justice Scalia and the Justices who joined his concurrence in the judgment in Noel Canning contended. If they had prevailed in that case, then there would be no possibility of the use of recess appointments at the beginning of a new presidential term.

The change in the Court's personnel since 2014, when Noel Canning was decided, suggests that if the case were to arise today as one of first impression, the outcome would be different. But it would be näive to think that the Supreme Court that has been so willing to overrule liberal precedents involving abortion, affirmative action, church-state separation, deference to administrative agencies, and more would not, all of a sudden rediscover the importance of stare decisis when it comes to construing the constitutional language regarding recess appointments. Thus, it would be foolish to assume that a majority of the current Supreme Court would retreat from Noel Canning to constrain the recess appointment power of a Republican president.

But even assuming that Noel Canning is right, reading the president's adjournment power to apply outside of congressional sessions called by the president on an emergency basis would be mistaken for the reasons set forth above. That's not to say that Johnson and Trump wouldn't try it, nor to say that if they did, Thune would resist, or that the courts would intervene. It is to say that if Senate Republicans follow the Constitution as written--admittedly, a big "if"--they can force up-or-down votes on each of Trump's nominees. Whether they will want to do that is another question entirely, however.