Understanding Recess Appointments as President Trump Prepares for Second Term
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Ken Klukowski and
Ken Blackwell18 Nov 2024Washington, DC1,413
10:29
Americans are hearing a lot about recess appointments as incoming President Donald Trump announces nominations to top government positions for his new administration, so understanding when and how the Constitution empowers presidents to make those appointments is key to grasping how the president-elect plans to implement a bold agenda to move the United States in a new direction and overhaul a deeply dysfunctional government.
Normally, under the Constitution’s Appointments Clause, senior positions in the federal government are filled by officers who are nominated by the president and confirmed by the Senate. Congress creates federal offices by passing laws, and specifies for each officer whether or not they require Senate confirmation. These senior officials are called “principal officers” in constitutional law, and of the 4,100 or so political appointees in the executive branch, there are 1,200 such senior positions. Lower-ranking positions are “inferior officers” that do not require the Senate.
But the Framers who wrote the Constitution foresaw that the Senate would often not be in session. Their solution was that the Recess Appointments Clause in Article II, Section 2, Clause 3 of the Constitution empowers the president to fill high-ranking positions without Senate confirmation under certain circumstances.
These recess appointments last throughout whatever annual session Congress is currently in, plus the next session. So, for example, any recess appointments made at any point in 2025 would last until Congress finishes in 2026 session sometime in December 2026. In other words, a recess appointment can last for almost two years — which is half of a presidential term.
Recess appointments are in the news as President Trump weighs his options for staffing up his administration, including the possibility of recess appointments. This strategy is the predictable result of Democrat obstruction in recent years.
With few exceptions, there was a standard way that Senate confirmations worked all the way from the Constitution’s adoption in 1789 to 1986, when Justice Antonin Scalia was confirmed to the Supreme Court by a vote of 98-0. Everyone knew that Scalia was an archconservative, first as a law professor and later as a federal appellate judge. But Ronald Reagan had been elected as a conservative Republican, so every Senate Democrat acknowledged that Scalia was well qualified, and voted to confirm him to a lifetime seat on the Supreme Court. He served for just shy of 30 years.
But Democrats won control of the Senate in the 1986 midterms, then in 1987 voted down Robert Bork for the Supreme Court, despite Bork being every bit as well qualified as Scalia. Judicial confirmations have been broken ever since, plaguing the Bush 41 years, where Justice Clarence Thomas was narrowly confirmed 52-48, all the way to President Trump’s first term, where all three of his Supreme Court picks – Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – were confirmed by similar margins.
Republicans tried to right the ship during the Clinton years. Liberal lion Ruth Bader Ginsburg was confirmed to the Supreme Court 96-3 in 1993, despite a long record as the ACLU’s top lawyer and a law professor, then an arch-liberal appeals judge on the federal bench. And liberal Justice Stephen Breyer was confirmed 89-9 the following year.
Yet when Republicans retook the White House in 2000, things got worse. Senate Democrats expanded their judicial obstruction to include federal appeals courts, and — relevant here — Democrats tried to systematically block or delay key executive nominations. Unquestionably qualified Republican nominees were slow-walked or scuttled.
Expanding this obstruction to the executive branch poses new challenges because it hampers governmental functions. Presidents serve 4-year terms. The rule of thumb is that political appointees have a shelf-life of 18 months or 2 years. So until recently, conventional wisdom was that a president is entitled to his choice for senior positions unless they are manifestly unqualified, and the major political parties acted accordingly.
When a president wins the support of the American people to claim the presidency, he wins with it the right to have very broad latitude in picking the people who will assist him in delivering what he promised to the voters. That is part of his mandate.
Bush 43 nominees endured that treatment for 8 years, so Republicans returned the favor to some degree when Barack Obama took the White House in 2008. That’s where recess appointments come in.
The Constitution says in Article I, Section 5, Clause 4 that neither house of Congress can “adjourn for more than three days” without the consent of the other house. So Senate Republicans adopted a plan during the Obama years to give Democrats a taste of their own medicine, whereby every three days a Republican senator would take the presiding officer’s chair, gavel the Senate into session, go through a couple formalities, then adjourn for another three days. These “pro forma” sessions blocked recess appointments.
Predictably, Obama had other plans. He responded to Senate Republicans by having his Department of Justice Office of Legal Counsel (OLC) issue a legal memorandum in 2012 saying that the president can declare the Senate to be in recess whenever there are too few senators on hand to conduct the Senate’s business. (OLC is essentially the general counsel’s office for the entire Executive Branch, including providing advice to the president on behalf of the attorney general.)
OLC’s claim was immediately seen by many as going too far. By 8:00 p.m. on most days there are no senators on the floor to do business, so taking the OLC opinion to its logical conclusion, most nights a president could make recess appointments right before going to bed. That would be absurd.
Nonetheless, Obama used his newfound power to make some recess appointments, including to the National Labor Relations Board (NLRB), which at that time lacked a quorum to conduct any business at all because there were too many vacancies.
Noel Canning was a company who got the short end of the stick from the newly revived NLRB, and promptly sued, arguing that Obama’s recess appointments to the NLRB were unconstitutional.
The Supreme Court in
NLRB v. Noel Canning agreed, holding 9-0 that the Recess Appointments Clause did not empower Obama to make those appointments, splitting between two opinions on exactly what that constitutional provision authorizes.
Justice Stephen Breyer wrote the majority opinion for five justices. Surveying varying historical practices since 1789, that majority held that 3-day pro forma sessions are too short for recess appointments, but the president can make recess appointments whenever the Senate adjourns for at least 10 days.
The court’s opinion also includes a caveat that is unhelpful for everyone. Specifically, the majority added that recesses that are longer than 3 days but less than 10 days are “presumptively” too short to open the door for recess appointments, but did not go on to explain what sort of circumstances could overcome that presumption so that a president could make appointments during that window.
But the practical takeaway is clear: If you want to give a president a clear alternate path for nominees who are having difficulty getting confirmed, make sure you adjourn for at least 10 days. The president will take care of the rest.
So long as there are at least 51 senators willing to adjourn for at least 10 days — or 50 senators plus the vice president as a tie-breaker — a president can make recess appointments that last roughly as long as a typical political appointment. Although the House also must consent to the Senate adjourning for that long, House procedures allow for the Speaker of the House to get such a measure through the chamber with fewer obstacles than in the Senate, so as long as the Speaker supports the move, it is harder to block consent in the House.
It is worth noting that the Constitution adds that if the House and Senate cannot agree on how long to adjourn, then the president has the authority to adjourn the entire Congress and also to set the date that members will reconvene, specifically providing that “he may adjourn them to such Time as he shall think proper.”
So if one chamber is willing to adjourn for at least 10 days but the other is not, it is conceivable that the president could adjourn them for, let’s say, 11 days, and make recess appointments during that time.
President Trump won a historic victory this month, winning both 312 in the Electoral College and the popular vote in the modern version of a landslide, generating a Red Wave that also secured a 53-47 majority in the Senate and a slim majority in the House. And while it is possible that Republicans could have won a nominal majority in the Senate without Donald Trump, it is beyond debate that they would not have as large of a majority as they have were it not for the groundswell of public support for the forty-seventh president.
Senate Democrats took their obstruction to unprecedented heights during President Trump’s first term, attempting to block countless appointees, sometimes with the tired old cliché that they claimed Trump was illegitimate. (Democrats seem think the public would forget that Democrats likewise said George W. Bush was illegitimate and used that as a pretext for obstructing his appointees as well.) But Trump’s 2024 victory was so decisive that questions about legitimacy will fall on deaf ears today, leaving only those with acute cases of Trump Derangement Syndrome — TDS for short — making such claims this time around.
The Constitution provides a path both for Senate confirmation of the president’s top picks and for recess appointments if needed, and now all eyes will be on the Senate to see what senators have the political will to do as President Trump returns to the White House.
Understanding recess appointments is key to grasping how President Trump plans to implement a bold agenda to overhaul a deeply dysfunctional government.
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