The president-elect’s desire to see his agenda advanced expeditiously is understandable, but the constitutional role of advice and consent is fundamental.
While the president-elect’s desire to see his agenda advanced expeditiously is understandable, the Senate’s constitutional role of advice and consent is fundamental.
T he withdrawal of Matt Gaetz from consideration as a nominee for attorney general may quiet the dispute surrounding President-elect Donald Trump’s stratagem of using recess appointments to avoid risking a Senate vote on some of his nominees. Despite this momentary calm, Trump’s stratagem remains a bad idea.
Let’s start with three constitutional fundamentals. First, Article II gives the president the sole power to nominate and appoint all principal officers of the United States but only with the advice and consent of the Senate. Although the Senate has no power to nominate and appoint, it checks and balances the president’s power with its power to withhold consent.
Second, a later provision of Article II gives the president the power to “fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Each Congress lasts for two years — corresponding to the two-year terms of House members — and consists of two one-year sessions. Importantly, this provision provides that the vacancies to be filled are only those that may “happen during” a “Recess.” President Washington’s attorney general, Edmund Randolph, said “happen during” a “Recess” meant that vacancies that existed before a recess could not be filled by recess appointments — and that “recess” meant the time between sessions of Congress. President Adams’s attorney general, Charles Lee, agreed.
Third, yet another provision of Article II empowers the president “on extraordinary Occasions” to “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.” Note that the disagreement must concern the “Time of Adjournment” and that adjournment would appear to be a pause that happens during a session of Congress.
The mandate for advice and consent is not in the Constitution by accident. Its purpose, as described by Alexander Hamilton in Federalist No. 76 in words that seem chillingly prescient, was to divide power so as to “prevent the appointment of unfit characters” who would be “obsequious instruments of [the president’s] pleasure.” The idea floated by Trump and his allies, on the other hand, would seem to require that the House pass a resolution to adjourn, that the Senate then object, and that the president then step in and exercise his power to impose an adjournment long enough to permit a recess appointment to bypass an uncooperative Senate.
Presidents, at times, have end-run the Senate’s consent authority by using recess appointments, generally amid the Senate’s objections. This inter-branch friction did not reach the Supreme Court until 2014, when Noel Canning, a Pepsi distributor, challenged the authority of the National Labor Relations Board to direct it to sign a collective bargaining agreement with a labor union, arguing that three of the five NLRB members were serving under unlawful recess appointments.
The Court agreed unanimously that the recess appointments at issue were unlawful, but justices were divided, 5–4, on why. Justice Stephen Breyer’s majority found that “vacancies that may happen” during a recess could apply even to vacancies that occur before a recess but continue during a recess, because recess appointments in such circumstances had been made in the past. The majority said that an adjournment of at least ten days was required before a recess appointment was permitted, and because the Senate was holding pro forma sessions to remain adjourned for fewer than ten days, the recess appointments of three NLRB members were improper. This ten-day rule was based on no textual authority whatever but rather on the Court’s assessment of ongoing practice, and, in any event, it was not part of the Court’s holding.
The late Justice Antonin Scalia and three other justices — Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito — agreed that the recess appointments were improper but wanted to go further to restrict the executive’s recess appointment power. As had the nation’s first two attorneys general, they argued that the term “recess” applied only to the period between sessions of Congress and that a vacancy to be filled by recess appointment had to occur during a recess, not merely continue into it. They characterized as “judicial adventurism” the majority’s reliance on ambiguous historical evidence rather than constitutional text to allow a recess appointment for a vacancy that had preceded a recess and for equating a ten-day adjournment with a recess.
With changes to the Court, the expansive majority opinion in the Noel Canning case is not necessarily the last word on recess appointments. Three of the four justices who favored the narrow view of recess appointments endorsed in the Scalia concurrence — Roberts, Thomas and Alito — are still there. They have been joined on the Court by three other justices — Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett — who likely would take the same narrow, originalist view of recess appointments as they did.
As to the Senate politics of such appointments, it bears mention that 45 Republican senators, including 20 still in office,* joined an amicus brief in the Noel Canning case that took the same position as Justice Scalia as to the scope of the recess appointment clause. Justice Scalia noted as much, citing “45 Senators taking that view of the Clause.” To be sure, those senators are not legally bound to adhere to the position they took in that brief, but they would have a good deal of explaining to do if they changed that position. They should take comfort in the fact that they are in good company: that of Antonin Scalia and Alexander Hamilton.
While the president-elect’s desire to see his agenda advanced expeditiously is understandable, the constitutional role of advice and consent is fundamental. In the words of Justice Scalia, “the Constitution’s core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights.”
The felt needs and enthusiasms of the moment do not relieve the president and the Senate of their duty to adhere to the obligations imposed by the Constitution: The president must submit his nominees to the judgment of the Senate, and the senators must weigh those nominees’ qualifications and accept or reject them.
* These are Senators John Barrasso, John Boozman, Susan Collins, John Cornyn, Mike Crapo, Ted Cruz, Deb Fischer, Lindsey Graham, John Hoeven, Ron Johnson, Mike Lee, Mitch McConnell, Jerry Moran, Lisa Murkowski, Rand Paul, James Risch, Marco Rubio, Tim Scott, John Thune, and Roger Wicker.