WASHINGTON (AP) — Republicans will control the White House and both houses of Congress in January. But President-elect Donald Trump’s intention to nominate loyalists to fill key Cabinet posts has set up a potential showdown with the Senate, which is constitutionally responsible for “advice and consent” on presidential nominees.
Trump and his Republican allies are talking about passing the Senate and using temporary recess appointments, which last no more than two years.
Invoking that authority could result in a fight that ends up in the Supreme Court. Trump may also have to use another, never-before-used power to force the Senate into recess if it does not agree.
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The Supreme Court has decided only one recess appointment case
In its 234 years, the Supreme Court has ruled on recess appointments in only one case. In 2014, the justices unanimously ruled that Democratic President Barack Obama’s recess appointments to the National Labor Relations Board were illegal.
But they disagreed sharply over the scope of the decision. Five justices supported a limited ruling that held that the Senate was not actually in recess when Obama took action, and in any case there had to be a recess of at least 10 days before the president could act on his own.
Justice Antonin Scalia, writing for the other four justices, reportedly ruled that the only recess recognized by the Constitution occurs between annual sessions of Congress, not during recesses during a session. That would have ruled out appointments that Trump could consider after the new Congress begins in January and he is sworn in.
The Conservatives’ previous statements may provide clues
Only two justices, Elena Kagan and Sonia Sotomayor, remain from the five-justice bloc that held that preserved the president’s power to make recess appointments during a session of Congress. Three others, John Roberts, Clarence Thomas and Samuel Alito, joined Scalia’s opinion that would have made it virtually impossible for a future president to make recess appointments.
The rest of the court has since become more conservative, as a result of Trump’s three appointments to the Supreme Court during his first term. Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have no record on the issue, which is rarely heard in the courts. This also applies to Judge Ketanji Brown Jackson, appointed in 2022 by Democratic President Joe Biden.
There is a tension between respect for precedent and original meaning
A more conservative Supreme Court might turn out differently today, but that is far from certain. Once the court decides a case, the ruling is considered a precedent that is not lightly discarded. So even some judges who initially disagree with a ruling will agree in subsequent cases on a similar issue.
An icon of the right, Scalia applied his originalist approach to the Constitution and concluded that there was little doubt about what the framers were trying to do.
The whole point of the Constitution’s provision on recess appointments, passed in 1787 in the era of the horse and buggy, was so that the Senate could not be called quickly to fill crucial vacancies, he wrote.
Scalia read a summary of his opinion aloud in court on June 26, 2014, saying the power to make recess appointments “is an anachronism.”
The Senate can always be convened at short notice to discuss a president’s nominations, he said.
“The only remaining practical use of the appointment power during the recess is its despicable utility in allowing presidents to circumvent the Senate’s role in the nomination process, and that is exactly what happened here,” Scalia said.
How can the issue return to the Supreme Court?
It’s not likely that this will happen anytime soon. Only someone affected by an action by an official who has been given a break appointment has the legal right, or standing, to file a lawsuit. In the NLRB case, Obama made his recess agreements 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, claiming that the NLRB decision against it was invalid because the board members were not properly appointed and that the board did not have enough members to conduct business without the improperly appointed officers.
The Supreme Court’s final decision came almost two and a half years later.
Who’s who among the break agreements
Among the most prominent people given first 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 left office after failing to win a Senate vote is John Bolton, who received a recess appointment as U.N. ambassador under Republican President George W. Bush.
Trump could try to force a congressional recess
A separate new legal issue could arise if Trump were to invoke a constitutional provision that his allies suggested would allow him to adjourn the Senate even if he doesn’t want to, and allow him to make recess appointments to make.
Article II, Section 3 of the Constitution contains a congressional adjournment clause that has never been invoked. Trump’s allies read that it gives the president the power to intervene if the House and Senate cannot agree on the timing of the suspension. The provision states that “in case of disagreement between them, as to the time of the adjournment, he may adjourn it to such time as he deems fit.”
But some scholars, including conservative ones, argue that the House of Representatives does not have the power to force the Senate to adjourn, and vice versa. Congress’s suspensions are outlined in Article I, which requires one chamber to agree if the other wants to take a break of more than three days. Under this view, the president could only intervene if one house objects to the other house’s adjournment plan.
