As I explained yesterday, President-elect Trump’s apparent idea of installing Cabinet officials by recess appointment is awful in so many ways. I have no illusion that anyone who likes that idea is going to be persuaded by anything else, but I’ll pass along another risk that applies both to it and to what I called the “much more modest and reasonable request” that the Senate enable intrasession recess appointments (by returning to its practice of formally adjourning for recesses instead of technically remaining in session via pro forma proceedings).
In brief: The Supreme Court might well rule that the president’s power to make recess appointments is limited to intersession recesses—the recesses between two Senate sessions—and, further, that it applies only to offices that become vacant during that recess.
Those are the positions that Justice Scalia, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito, embraced in his powerful concurrence in the judgment ten years ago in NLRB v. Noel Canning (2014). Scalia condemns the “tragedy” of the “majority’s deference to the unconstitutional recess-appointment practices of the Executive Branch” and the “damage done to our separation-of-powers jurisprudence more generally.”
It’s a very safe bet that Justice Gorsuch, Justice Kavanaugh, and Justice Barrett would agree with Scalia if they were looking at the issues afresh. So that would make a six-justice majority among the current members of the Court.
Any president who chooses to rely on intrasession recess appointments would be betting that a challenge to those appointments would not be justiciable or that stare decisis considerations would lead two or more of these six justices to acquiesce in a recent ruling that they regard as fundamentally wrong. If a president can’t get a nomination confirmed through the ordinary processes, perhaps such a bet would be sensible. But it would be foolish not to make a serious effort to work through those ordinary processes.