WASHINGTON (AP) — Starting in January, Republicans will control the White House and both chambers of Congress. But President-elect Donald Trump’s intention to nominate loyalists to fill key Cabinet posts has led to a potential confrontation with the Senate, which is constitutionally responsible for “advising and approving” presidential nominees.
Trump and his Republican allies are talking about bypassing the Senate and using short-lived pauses that last no longer than two years.
Invoking that authority could lead to a dispute that ends up in the Supreme Court. Trump may also have to claim another, never-before-used power to force the Senate into recess if he doesn’t agree to one.
The Supreme Court has decided only one case of recess appointment
In its 234 years, the Supreme Court has decided only one case involving recess appointments. In 2014, the justices unanimously ruled that Democratic President Barack Obama’s appointments to the National Labor Relations Board during the recess were illegal.
However, they did not agree on the scope of the decision. Five justices supported a constrained ruling that said the Senate was not in recess when Obama acted, and in any case, a recess had to last at least ten days before the president himself could act.
Justice Antonin Scalia, writing for the other four justices, would have ruled that the only break recognized by the Constitution is between annual sessions of Congress, not breaks taken during a session. That would have ruled out appointments Trump might consider after the recent Congress begins in January and he is sworn into office.
The Conservatives’ previous rulings could provide clues
Only two justices, Elena Kagan and Sonia Sotomayor, remain from the five-justice bloc that held that the president’s power to make recess appointments during a congressional session is preserved. Three others, John Roberts, Clarence Thomas and Samuel Alito, joined Scalia’s opinion, which would have made it virtually impossible for a future president to make recess appointments.
The rest of the court has since become more conservative, reflecting Trump’s three Supreme Court appointments in his first term. Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have no experience on this issue, which is rarely raised in court. Judge Ketanji Brown Jackson, a 2022 nominee by Democratic President Joe Biden, also does not apply.
There is a tension between respect for precedent and original meaning
A more conservative Supreme Court could play out differently today, although this is far from certain. Once the court rules on a case, the ruling is considered a precedent that is not lightly discarded. Therefore, even some judges who initially disagree with a ruling will go along with it on a similar issue in later cases.
Scalia, an icon of the right, applied his originalist approach to the Constitution and concluded that there was little doubt about what the framers were trying to accomplish.
The whole point of the constitutional provision on recess appointments, passed in 1787 in the age of the horse and carriage, is that the Senate cannot be convened quickly to fill critical vacancies, he wrote.
As Scalia read a summary of his opinion in the courtroom on June 26, 2014, he said the power to set recess dates was “an anachronism.”
The Senate could be convened at any time on low notice to consider a president’s nominations, he said.
“The only remaining practical use for recess appointment power is to allow presidents to bypass the Senate’s role in the appointment process, and that’s exactly what happened here,” Scalia said.
How could the matter be returned to the Supreme Court?
It’s unlikely to happen quickly. Only someone affected by an action by an official assigned a break date would have the legal right or standing to sue. In the NLRB case, Obama made his recess appointments in January 2012.
The board then ruled against Noel Canning, a supple drink bottler in Yakima, Washington, in a contract negotiation dispute with a local Teamsters union. The company sued, claiming that the NLRB decision against it was invalid because the board members were improperly appointed and that the board did not have enough members to conduct business without the improperly appointed officials.
The Supreme Court’s final decision came almost two and a half years later.
Who’s who among the break dates
Among the most prominent people initially given recess appointments and later confirmed by the Senate are Chief Justice Earl Warren, Judge William Brennan and Federal Reserve Chairman Alan Greenspan. Among those who resigned after failing to win the Senate vote was John Bolton, who was appointed U.N. ambassador during a recess under Republican President George W. Bush.
Trump could try to force a congressional recess
A separate, novel legal problem could arise if Trump were to invoke a constitutional provision that his allies have suggested would allow him to force the Senate to adjourn even if he doesn’t want to, allowing him to do so would make appointments for the breaks.
Article II, Section 3 of the Constitution contains a congressional adjournment clause that has never been invoked. Trump’s allies understand this to give the chief executive the power to intervene if the House and Senate cannot agree on the timing of the adjournment. The provision states: “In the event of a difference of opinion between them as to the time of adjournment, he may adjourn it to such time as he thinks fit.”
However, some scholars, including conservatives, argue that the House of Representatives does not have the authority to force the Senate to adjourn and vice versa. Adjournments of Congress are governed by Article I, which requires the consent of one chamber if the other wants to take a recess of more than three days. According to this view, the President could intervene only if one house objected to the other’s plan to adjourn.
