On the Center for Renewing America’s website, Jeff Clark (a senior official in the Department of Justice in Donald Trump’s first term) and Anthony Licata have published today an extended defense of President-elect Trump’s proposal to use recess appointments to fill his Cabinet. Some observations and criticisms outlining why I think that their defense is unsound:
1. There are two large questions at issue in this recess-appointments controversy. One is whether it’s proper for a president at the outset of his term to try to do blanket recess appointments of his Cabinet officers in order to bypass the Senate’s advice-and-consent role. The second is whether the means that Trump is contemplating are constitutionally permissible.
2. As I have explained, it’s a fundamental general feature of our constitutional system of checks and balances that the president shall submit his nominations for major offices to the Senate for approval. 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.]
Yes, the Constitution also provides a backup provision that allows the president to make recess appointments—“to fill up all Vacancies that may happen during the Recess of the Senate.” But as Hamilton explains in Federalist No. 67, this “auxiliary method of appointment” is “nothing more than a supplement” to the “general mode of appointing officers of the United States” and is to used “in cases in which the general method was inadequate.” (Emphasis added.)
3. Clark and Licata would have you think that the question at hand is merely whether a lawful recess appointment is somehow “not entirely valid or in some way suspect.” (Quoting a case.) But it’s one thing to recognize that a lawful recess appointment is indeed “entirely valid.” It’s quite another to think that the president can turn the Constitution’s appointment process on its head by displacing the “general mode of appointing officers” via Senate confirmation with the “auxiliary” (or “supplement[al]”) method of recess appointments.
4. On the question whether the means that Trump is contemplating is lawful, Clark and Licata contend that all nine justices in NLRB v. Noel Canning (2014) agreed that, as Justice Breyer’s majority opinion for five justices put it in dicta, “[t]he Constitution … gives the President (if he has enough allies in Congress) a way to force a recess.” Breyer oddly crams this statement in as seeming support for his statement that “the Senate unquestionably has other methods of preventing recess appointments” when it in fact cuts in the opposite direction. As dicta goes, it’s difficult to imagine anything much weaker.
Clark and Licata would have you believe that Justice Scalia and the three justices (Chief Justice Roberts, Justice Thomas, and Justice Alito) who joined his separate opinion concurring only in the judgment “agreed with” this dicta. But Scalia says only that, under Breyer’s mistaken holding, “if the House and Senate disagree, the President may be able to adjourn both….” (Emphasis added.) The phrase “may be able to” is rife with uncertainty, consistent with the proposition that passage is supporting—namely, “How this new regime [of “judge-made rules” concocted by the majority] will work in practice remains to be seen.” Wordsmith that he was, if Scalia meant what Clark and Licata contend he meant, he would have written could instead of may be able to.
In a post earlier today, I explained that the House has no authority to disagree with the Senate’s decision to remain in session and that the president’s scheme is therefore unconstitutional. The passing dicta in Breyer’s majority gives no consideration to this fatal defect. Nor do Clark and Licata.
5. As I have pointed out (point 4 here), yet another defect in the blanket recess-appointment scheme is that a longstanding statute would prohibit payment to anyone who accepts the recess appointments that Trump is contemplating. While they are otherwise eager to trample established practices, Clark and Licata blithely claim that “conventionally … a recess appointee must receive pay on the same plane as any Senate-confirmed officer.” They offer a hodgepodge of other assertions that the statute is unconstitutional. They cite zero authority for their assertions, and I see no need to address them.
6. I will highlight that in my capacity as principal deputy in the Office of Legal Counsel in the Department of Justice, I authored an opinion advising that an official (Eugene Scalia) then serving as Solicitor for the Department of Labor under a recess appointment could, after expiration of his recess appointment, be designated as the Acting Solicitor under the Vacancies Reform Act. Clark and Licata cite that OLC opinion and state that President Trump could make the same use of that Act. Although I haven’t examined whether there have been any intervening changes in the law, I have no reason to disagree with them.
But the prospect that Trump could use the Vacancies Reform Act to extend—for at least 210 days (and perhaps for much longer)—the terms of Cabinet officials whom he recess-appointed provides further reason to thwart his evasion of the Senate confirmation process at the outset.
Clark and Licata also cite the OLC opinion in two footnotes in support of their recess-appointment argument. My point 3 covers why I don’t think that it provides them any meaningful support.
[11/18: I have made some minor clarifying revisions.]