With the impending control of the White House and both chambers of Congress by Republicans in January, President-elect Donald Trump is poised to face significant challenges regarding his intent to nominate loyalists for key Cabinet positions. The U.S. Constitution mandates that the Senate provides “advice and consent” on presidential nominees, which creates a potential point of conflict as Trump and his allies contemplate strategies that could circumvent traditional Senate approval. One proposed strategy includes utilizing temporary recess appointments that would allow him to fill positions for two years without Senate approval. This controversial approach raises the question of whether it could lead to a legal battle escalating to the Supreme Court.
Historically, the Supreme Court has resolved very few recess appointment cases, with only one significant ruling in 2014 concerning appointments made by President Barack Obama to the National Labor Relations Board. The Court ruled unanimously that those recess appointments were illegal due to the Senate not being in recess at the time of the appointments. However, the decision was contentious, revealing a division among justices on the interpretation of the Constitution regarding recess appointments. Justice Antonin Scalia, in particular, argued that only inter-session recesses, as opposed to breaks during a session, should be acknowledged. This interpretation could critically affect Trump’s plans for appointments if he considers appointing officials after the new Congress begins.
The current composition of the Supreme Court leans more conservative since Trump appointed three justices during his first term. This change has implications for how future recess appointment cases may be judged. While Justices Kagan and Sotomayor remain of the view that recess appointments can occur during sessions, the majority, including Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, support a more limited interpretation. Along with the addition of Justices Gorsuch, Kavanaugh, Barrett, and Biden’s appointee Ketanji Brown Jackson, the conservative majority may lean toward stricter interpretations that inhibit presidential recess appointment authority.
The potential for a legal showdown also hinges on the balance between respecting judicial precedents and adhering to originalist interpretations of the Constitution. Scalia emphasized the founding framers’ intent with recess appointments, aimed at addressing urgent vacancies without the lengthy process of reconvening the Senate. However, he and other justices have noted that the ease of convening the Senate has diminished the practical necessity of such powers in contemporary governance, suggesting that the recess appointment power may, at times, be misused by presidents to bypass the Senate’s constitutional role in the appointment process.
If the issue of recess appointments resurfaces in court, it may not be immediate. A party must have standing to sue, which typically involves individuals directly affected by a recess appointment. The precedent set by the NLRB case, wherein a company contested a ruling based on the legitimacy of the board’s composition, emphasizes the lengthy legal processes involved. As the Supreme Court’s previous recess appointment legal deliberation took two and a half years, it underscores the complexities and protracted timelines that often accompany such constitutional issues.
Moreover, another contentious point arises if Trump decides to invoke a previously unused constitutional power that may allow him to force Congress into recess unilaterally. Article II, Section 3 discusses presidential power during disagreements between the House and Senate regarding adjournments, suggesting that Trump could potentially adjourn Congress to facilitate his recess appointments. However, constitutional scholars debate the applicability of this provision, arguing that the power of adjournment inherently lies within the powers of Congress as outlined in Article I. This legal ambiguity hints at the potential for a unique constitutional crisis should Trump choose this route, further complicating the relationship between the executive branch and Congress in the appointment process.