WASHINGTON — Republicans will control the White House and both houses of Congress come January. But of President-elect Donald Trump intention to appoint loyal It has set up a possible clash with the Senate, which is responsible for constitutional “advice and consent” of presidential nominees, over filling key cabinet posts.
Trump and his Republican allies are talking about going through the Senate and using it temporary respite appointmentsthat last more than two years.
Invoking that authority could result in a battle that lands in the Supreme Court. Trump may also have to invoke another, never-before-used power to force the Senate into recess if he doesn’t approve.
In its 234 years, only the Supreme Court has decided a case involving recess appointments. In 2014, the courts unanimously ruled that Democratic President Barack Obama’s appointments to the National Labor Relations Board were illegal.
But they did not fully agree on the scope of the decision. Five justices upheld a limited recess when the Senate was not in office when Obama acted and, in any case, the recess had to be at least 10 days before the president could act on his own.
Justice Antonin Scalia, writing for the other four justices, said the only recess recognized by the Constitution occurs between the annual sessions of Congress, not recesses during a session. That would rule out any nominations Trump might consider after the new Congress begins in January and he is sworn into office.
Only two justices remain, Elena Kagan and Sonia Sotomayor, from the five-justice bloc that was deemed to retain the power to make recess appointments during a session of Congress. Three others, John Roberts, Clarence Thomas and Samuel Alito, agreed with Scalia that it would be nearly impossible for any future president to make recess appointments.
The rest of the court has since become more conservative as a result of Trump’s three court appointments in his first term. Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have no briefs on this issue, which rarely comes up in court. Not even Judge Ketanji Brown Jackson, the 2022 nominee of Democratic President Joe Biden.
A more conservative Supreme Court might come out differently today, though that’s by no means certain. When the court decides a case, the ruling is considered a precedent that is not lightly dismissed. Therefore, some judges who initially disagree with a ruling will also go over a similar issue in later cases.
Scalia, an icon of the right, applied his originalist approach to the Constitution to conclude that there was little doubt what the framers were trying to do.
The whole point of the constitutional provision on recess appointments, passed in 1787 during the horse and buggy era, was that the Senate could not be called quickly to fill critical positions, he wrote.
Reading the brief of his opinion aloud on the floor on June 26, 2014, Scalia said the power to make recess appointments “is an anachronism.”
The Senate can always convene on short notice to consider a president’s nominations, he said.
“The only practical use left of the recess appointment power is to allow presidents to circumvent the Senate’s role in the appointment process, which is exactly what happened here,” Scalia said.
It’s not likely to happen quickly. Only a person aggrieved by an action taken by an officer who has been given an appointment for leave would have the legal right or process to sue. In the NLRB case, Obama made his recess appointments in January 2012.
The board then ruled against Noel Canning, a soft drink bottling company in Yakima, Washington, in a dispute over contract negotiations with a local Teamsters union. The company sued on the grounds that the NLRB’s decision against it was invalid because the board members were not properly appointed and the board did not have enough members to conduct business without properly appointed officers.
The Supreme Court’s final decision came nearly two and a half years later.
Prominent individuals whose first recess appointments were later confirmed by the Senate include Earl Warren, William Brennan, and Federal Reserve Chairman Alan Greenspan. Among those who resigned after failing to win the Senate vote is John Bolton, who was given a break as UN ambassador under Republican President George W. Bush.
A new legal problem could arise if Trump invokes a constitutional provision suggested by his allies that would allow him to force the Senate to adjourn, even if he doesn’t want to, and allow him to make recess appointments.
II of the Constitution article, section 3, contains a clause on congressional adjournments, which has never been mentioned. Trump’s allies have been read as handing over power to the executive branch when the House and Senate can’t agree on when to suspend. The provision says: “In the absence of agreement between them, regarding the suspension time, they can postpone them to the time they deem appropriate.”
But some scholars, including conservatives, say the House does not have the power to force the Senate to adjourn, and vice versa. Adjournments of Congress are defined in Article I, as one house requires concurrence when the other wants to take a break of more than three days. Under this view, the president can intervene when one house objects to the other’s suspension plan.
