On top of its deeply flawed piece in support of President-elect Trump’s recess-appointments scheme, the Center for Renewing America has posted, and is distributing to Republicans in Congress, a Q&A that purports to address relevant questions about that scheme. But the Q&A doesn’t even pose the most important questions, and it provides wrong or misleading answers to important questions it does address.
Here are some questions and answers it should present but doesn’t:
Question A: Why does the Appointments Clause of the Constitution require that the Senate confirm a president’s nominee to a major office before the president can appoint that person?
Answer: The requirement plays a vital role in helping to ensure that the president makes quality picks. As Hamilton explains in Federalist No. 76, the Senate’s power to approve or reject nominations “in ordinary cases” provides “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters”:
It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. [Underlining added.]
Question B: What is the relationship between the Appointments Clause of the Constitution and the Recess Appointments Clause?
Answer: As Hamilton explains in Federalist No. 67, the Recess Appointments Clause provides an “auxiliary method of appointment” that is “nothing more than a supplement” to the “general mode of appointing officers of the United States” under the Appointments Clause, and it is designed to be used “in cases in which the general method was inadequate.”
Question C: Has any president ever tried to force a recess at the outset of his presidency for the purpose of making recess appointments?
Answer: No.
Question D: Has any president ever made blanket recess appointments of Cabinet officials at the outset of his presidency?
Answer: No.
Question E: Has any president ever made a single recess appointment of a Cabinet official at the outset of his presidency?
Answer: Not that we are aware of. (President Jefferson recess-appointed Albert Gallatin as Treasury Secretary 2-1/2 months into his presidency.)
Question F: Is President-elect Trump’s scheme to use House Speaker Mike Johnson to try to trigger the president’s power to adjourn both Houses constitutional?
Answer: No. The House has no authority to “disagree” (for purposes of Article II, section 5) with the Senate’s remaining in session.
Without acknowledging or engaging this argument, CRA blithely asserts, “It stands to reason that if one body were to pass an adjournment resolution and the other were not, the presidential power to adjourn would be activated.” That assertion may well be sound if one House is refusing to consent to the other House’s request to adjourn, but it makes no sense when one House is trying to adjourn the other—something that it has no power to do.
More broadly, as one constitutional scholar puts it:
The whole idea is a constitutional abomination…. The very idea that the speaker of the House would collude with the president to undermine the Senate’s constitutional role and effectively make the legislative branch a passive plaything of the executive should outrage any member of Congress.
Question G: Would the validity of President Trump’s recess appointments be vulnerable to legal challenge?
Answer: Yes. Any person aggrieved by an action taken by one of the recess appointees could challenge the validity of the recess appointment as part of that person’s challenge to the action. A simple example would be someone whom the recess appointee fired. There could be dozens of lawsuits filed within days of the recess appointments. Lower courts could be expected to rule against the validity of the recess appointments on the ground presented in the answer to Question F.
If a challenge reaches the Supreme Court, there is a strong likelihood that the Court would rule on that same ground that the recess appointments are invalid. In addition, the Court might choose to revisit its hotly contested five-justice ruling in NLRB v. Noel Canning that held that the president can exercise his recess-appointment authority in intrasession recesses.
In its answer to its own Question 8, CRA misleadingly characterizes NLRB v. Noel Canning as a “unanimous decision” in which “the Supreme Court provided clear guidelines for the constitutionality of recess appointments.” Although all nine justices agreed that the recess appointments challenged in that case were unlawful, they sharply divided, five to four, on the reasons.
In his powerful concurrence in the judgment, Justice Scalia, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito, determined that the president has no power to make recess appointments during intrasession recesses (which the recess that Trump would try to engineer would be) or to offices that became vacant before the recess (which many or most of the positions that Trump would try to fill would be).
Roberts, Thomas, and Alito of course remain on the Court, and they have been joined by three other justices (Gorsuch, Kavanaugh, and Barrett) who very likely agree with Scalia’s positions. It’s a very risky bet that stare decisis considerations would prevent a Court majority from embracing those positions.
Here are some answers that CRA provides that are wrong or misleading:
Question 3: Is it constitutional for a President, at the outset of their administration, to initiate recess appointments of executive branch officers?
Answer: Yes. This is not a legal question, it’s a practical one. [The answer includes two more paragraphs.]
Comment: One of the major objections to blanket recess appointments of Cabinet officials and other senior officers at an outset of a presidency is that such a practice eviscerates the Senate’s “advice and consent” role that Hamilton explained “would tend greatly to prevent the appointment of unfit characters.” So even if legal, such blanket recess appointments undermine the Constitution’s system of checks and balances.
In the remainder of its answer, CRA claims that delays in confirmation mean that the president is “functionally prohibited from exercising his full executive authority until months after taking office.” That claim is overblown. For starters, a Senate with 53 Republicans can be expected to promptly confirm Trump’s plausibly qualified Cabinet nominees. Hearings can begin as early as January 3, and the Senate will be able to confirm Trump’s nominees as soon as he formally submits their nominations on January 20. (In Trump’s first term, the Senate confirmed his Secretary of Defense and Secretary of Homeland Security on Jan. 20, his Secretary of State on Feb. 1, his Attorney General on Feb. 8, his HHS Secretary on Feb. 10, and his Treasury Secretary on Feb. 13.) Prompt nominations of second-tier officials (aided by an important Senate rules change in 2019) and deft use of the Vacancies Reform Act should enable the Trump Administration to be up and running fairly quickly. In sharp contrast, a judicial invalidation of his recess appointments would set it back many months.
Question 5: Isn’t using recess appointments just a way to bypass the Senate’s advice and consent power?
Answer: Not at all. Advice and consent is unquestionably a Senate power granted by the Constitution, which is why Presidents typically submit recess-appointed officers to the Senate for confirmation. If the Senate fails to confirm a recess appointee, those appointed would be unable to remain in the role after the recess commission expires.
Comment: “Not at all” is an absurd answer. Many recess appointments are both lawful (under existing Supreme Court precedent) and uncontroversial. But many recess appointments, even while lawful, are designed to “bypass the Senate’s advice and consent power”? On this point, it is irrelevant whether the president also submits a nomination of the recess-appointed officer for confirmation, and it is irrelevant that the recess appointment ultimately expires (after a period that could run nearly two years for intrasession recess appointees).
CRA is deceptive when it states that “those appointed would be unable to remain in the role after the recess commission expires.” Its own plan contemplates that Trump would use the Vacancies Reform Act to extend the terms of recess appointees (as “acting” officers) for at least 210 days after their recess appointment expires (and perhaps for much longer).