I’ve already explained that a president’s blanket recess appointments of Cabinet officials at the start of a presidential term would eviscerate the Senate’s fundamental power of advice and consent; that it’s even more outrageous to think that a president would try to adjourn the Senate in order to make recess appointments; that the particular scheme that Team Trump is contemplating is unconstitutional, as the House has no authority to disagree with the Senate’s remaining in session; and that any such effort could also enable the Supreme Court to embrace the position taken by Justice Scalia, Chief Justice Roberts, Justice Thomas, and Justice Alito ten years ago in NLRB v. Noel Canning (2014)—namely, that the president has no power to make intrasession recess appointments.
Here I want to emphasize some radical consequences of an immediate Senate recess that I don’t believe have received any attention. So let’s go beyond the fact that any nomination of Donald Trump’s that couldn’t be confirmed in a Senate with 53 Republicans is in all likelihood a nomination that shouldn’t be made in the first place. And let’s also go beyond allowing Trump’s announced picks to occupy high positions of power without first undergoing Senate scrutiny. Consider also these consequences:
A recess would enable Trump to nominate anyone to any vacancy. He wouldn’t be limited to the picks that he has announced at the time the recess begins. Indeed, he wouldn’t even need to stick with any of his announced picks. So he could, for example, substitute anyone in place of Marco Rubio as Secretary of State.
What’s more, Trump would have a strong incentive to create new vacancies by removing (or, if his removal power is limited, purporting to remove) existing officeholders—such as Jerome Powell, chairman of the Board of Governors of the Federal Reserve System—as he would immediately be able to install their replacements.
Trump could also make an immediate recess appointment to every existing judicial vacancy.
These recess appointments (if they were lawful) would last through the end of the Senate session in 2026. Plus, the Trump team has in mind using the Vacancies Reform Act to extend the terms of executive-branch officials, as “acting” officers, for at least 210 days (and perhaps for much longer), deep into 2027. (See the “Federal Vacancies Reform Act” section of this Trump team white paper, which I critique here.) And if Trump’s recess-appointment scheme were to prevail, he could then resort to it again. So the Senate might never be able to play its core constitutional advice-and-consent role with respect to Trump’s Cabinet officials or other important picks.
[I added the last paragraph about two hours after my initial posting.]