President-elect Donald Trump continues to stamp his detractors as prescient in their insistence that, left to his own devices, he will ride roughshod over the Constitution. I wonder whether I’ll be prescient, or be proved tragically wrong, in having opined that the Constitution’s guardrails, though barely a bump in the road for progressive Democratic presidents, will prove robust in defeating Trump’s excesses.
It’s a good time to think about this. And not just regarding my main topic, the outrageous recess-appointment scheme by which, informed hypothesis holds, the once and future president will try to install any unconfirmable nominees, such as Matt Gaetz, the prospective attorney general, and Robert F. Kennedy Jr., the nanny-state anti-vaccine crank nominated to be Health and Human Services Secretary.
We are nearing the fourth anniversary of the January 6 Capitol riot. The tumult of that day was instigated by then-President Trump’s claim that the vice president, in presiding over the joint session of Congress at which the Electoral College vote is ratified, has the constitutional authority to invalidate (or otherwise refuse to count) state-certified electoral votes. Under Trump’s specious theory — unsupportable in law, logic, or American history (but, naturally, supported by Gaetz) — the current vice president, Trump’s 2024 opponent Kamala Harris, would be empowered to invalidate his hard-won electoral votes and scheme to make herself the victor.
As it happens, Harris has no such power because the system’s guardrails worked against Trump’s artifice in 2021, after which Congress acted to make more explicit what was already obvious — vice presidents have no such power, their role at the joint session being essentially ministerial and solemnly ceremonial. If Democrats had tried something as audacious as Trump did following the 2020 election, we’d have been bombarded with wails about the death of the Republic by the same Trump cultists who are now apologists for the recess-appointment scheme. But in this instance, the counter-constitutional escapade is a Trump scheme, so they proclaim it “the will of the voters” — notwithstanding the over 73 million Americans who voted for Harris (by the time the counting is done, she will have made a stronger second-place showing by popular-vote percentage than Trump did in 2020), and the 150 million Americans who voted in congressional races, including those for the Senate — whose constitutional role Trump is intent on eradicating, for himself and for the benefit of all future Democratic presidents who’d install unconfirmable leftwing lunatics in top government posts.
Our Ed Whelan has ably explained the recess-appointment scheme. (See Ed’s Bench Memos post, linking to his full Washington Post op-ed.) Trump would exploit a provision of the Constitution never before used for this purpose, Article II, Section 3, which states in pertinent part:
[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper. [Emphasis added.]
To be clear, when Trump assumes office on January 20, 2025, the Senate and House will already be in session — the first session of the 119th Congress of the United States begins 17 days earlier, on January 3. The challenges facing the nation are great, the amount of work to be done (including confirmations of executive officials) is immense, and there is thus no reason for either congressional chamber not to be in session, much less to be disagreeing about whether they should be in session.
Nevertheless, the reported supposition is that Trump will attempt to manufacture a disagreement as a pretext for creating an adjournment of at least ten days, which his administration would regard as a recess (the italicized terms are important for reasons we’ll come to). This, the theory goes, would give him the window he needs to install cabinet appointees (and perhaps other high officials) who would have difficulty getting through Senate confirmation.
Trump could not pull this off on his own. He’d need help from Republicans in Congress: a joint House-Senate resolution calling for an adjournment of at least ten days. The Senate is a non-starter because, though it has no shortage of Trump factotums, the new president would be unable to unite all 53 Republicans in a scheme to eviscerate their own advice-and-consent power. (Democratic senators would not be able to filibuster such a procedural motion, but there would be no need for that.)
Ergo, the thinking is that Trump would need to coopt House Speaker Mike Johnson (R., La.): It would be up to the speaker to unite Republicans, almost unanimously, behind a proposed joint resolution; the Senate would refuse to go along, whereupon Trump would proclaim a “disagreement” between the two chambers. This would purportedly trigger his power to adjourn them for ten days, during which he’d make the recess appointments. No confirmation? No problem.
I don’t think this scheme is going to work for the most basic of reasons: There will not be the required majority in the House (218 votes) for an adjournment resolution. We don’t yet know what the Republican majority is going to be, but it will surely be narrow, probably around 223 to 212, such that the GOP could only afford to lose around five votes if the Democrats hold together. While scores of House Republicans seem to think their job, in what’s supposed to be an independent branch of government, is to do the bidding of a president from their party, many will not go with the flow, especially on a measure that the media-Democratic complex will forcefully describe as fraudulent (and for once, they’d be right).
But this scheme has more striking problems than mere House math.
The Framers were concerned that the presidency they were creating could become tyrannical. The road to tyranny — meaning, to the eradication of Americans’ liberty — would always be the accumulation of too much power in any one government actor’s hands. Hence, they divided power, structuring the government so that the branches checked each other’s authority. In that vein, they empowered the Senate to ensure that high executive officials had the qualifications and character fitting for public trust — the government offices in which they would wield enormous power. The president can fire any executive official at any time — subordinates are delegated to exercise the president’s power only at the president’s pleasure. But the president cannot hire anyone he wants. Nominees are subject to the Senate’s constitutional duty to advise and consent (Article II, Section 2).
Ed Whelan calls our attention to Hamilton’s wisdom in Federalist No. 76. The entire essay is worth taking to heart, but the central point is indeed that the Senate’s role is designed to “prevent the appointment of unfit characters” who would serve, not the public interest, but as “obsequious instruments of [the president’s] pleasure.” This underscores the main point: The Framers did not conceive this role in order to enhance the Senate’s power; they did it to enhance liberty — to avoid vesting too much uncheckable power in the president’s hands. The aim was to prevent tyranny.
This was a central theme of the late, great Justice Antonin Scalia’s brilliant concurrence a decade ago in NLRB v. Canning. Even more than the Bill of Rights, the Framers posited that the structural protections in the Constitution’s seven articles — the horizontal checks the three branches of the federal government pose against each other, and the vertical checks between the government, the sovereign states, and the American people — were what principally ensured our liberties, privileges, and immunities. For a president to undermine the Senate’s key constitutional role in vetting appointees is not an attack on the Senate; it is an attack on liberty, on all of us.
It is worth pausing on Justice Scalia for a moment. After all, President-elect Trump claims that Scalia is one of his models for what a Supreme Court justice should be. I don’t mean that as a dig (well, maybe a little under the circumstances). True to his word, Trump named three conservative justices to the Court — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — whose confirmation hearings seemed at times like a competition to best amplify Scalia’s originalism and textualism. Justice Barrett, in fact, was a Scalia clerk and protégé.
Let’s remember: Had it not been for the Senate’s then-leader Mitch McConnell’s determination to maintain the Court vacancy created by Scalia’s 2016 death — i.e., to let the voters decide whether Trump or Hillary Clinton would name the justice’s replacement, rather than allow the lame-duck President Barack Obama to slide Merrick Garland into it — it is a virtual certainty that Clinton would have been elected. It was a key campaign advantage that Trump could laud Scalia as a paragon jurist while predicting that Clinton would fill his seat with a radical lefty. And it should go without saying that many Trump supporters in Congress, including countless lawmakers he’s apparently counting on to help him bypass the confirmation process, pose as Scalia fans and adherents to his constitutional originalism.
Scalia’s Canning concurrence is thus worth revisiting for several reasons. First, again, the theme that a scheme against the Constitution’s advice-and-consent role is an attack on liberty.
Second, the point that recess-appointment authority is an anachronism that should no longer be operative, even if a court has no power to strike it. (To my mind, we should strike it by amendment.) In the 18th and 19th centuries, it was no mean feat to convene Congress; there were significant periods between sessions when lawmakers were in recess, and when there could be exigencies that called for the appointment of high public officials. It made sense, then, to give a president a narrow power to fill vacancies until the end of the next session, which would enable to Senate to evaluate the appointee’s qualifications and performance post hoc.
Kickstart Your Day with The Morning Jolt
Start your mornings with expert political insights from NR’s Jim Geraghty.
Today, however, we live in a different world in terms of communications and travel technology. The Senate, in recess or adjournment, is never more than a few hours from being able to convene. As we saw during Covid, it will usually be possible in a crisis — at least if communications systems are running — to convene remotely. Hence, the rational calculation for trying to orchestrate a recess appointment is apt to be, as Scalia put it, an “ignoble” one — namely, to circumvent the Senate so an unworthy nominee may be empowered.
Third, though Scalia agreed with the Court’s bottom line that President Obama’s appointments to the NLRB while the Senate was in pro forma session were unconstitutional (that’s why his opinion is a concurrence, not a dissent), he deeply disagreed with the majority’s incoherent reasoning. For an originalist, a recess is the time between formal sessions of Congress; it is not any adjournment a chamber takes, whether for a few minutes or a few days. The majority’s arbitrary formulas — e.g., less than three days is not enough down time for a recess, four-to-nine days may or may not be enough depending on the circumstances, ten days probably does the trick — is completely arbitrary judicial legislating. Plus, it undermines significant limitations on recess appointments as originally understood: They were not just permitted only during an actual recess; the appointment power could applied only to vacancies that occurred during the recess — if a vacancy occurred during a Senate session (as they are more apt to do nowadays), it could not be filled in a recess. The point of crafting a narrow exception from the Constitution’s default confirmation mandate was to deal with unavoidable emergencies when the Senate was truly unavailable, not to cut the Senate out.
Fourth, Scalia was not alone in his view. He was joined by three conservative justices who remain on the Court — namely, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. By contrast, of the five judges in the majority, only two remain: Justices Sonia Sotomayor and Elena Kagan; Justice Ruth Bader Ginsburg passed away, while Justices Anthony Kennedy and Stephen Breyer (the author of the majority opinion) have retired. It is not enough to say that the three aforementioned Trump-appointed justices would be likely to adopt Scalia’s reasoning if the issue comes up again, as it very likely would if Trump tries to bypass the Senate. I’d also wager that, since the president under the microscope this time would be Trump rather than Obama, the two progressives who did not agree with Scalia in Canning (Sotomayor and Kagan) would reconsider their position, while the Court’s new progressive, Justice Ketanji Brown Jackson, would similarly conclude that Trump was in violation of the Constitution.
That is, if the faux recess-appointment issue makes it back to the courts, a lopsided vindication of Scalia’s concurrence is the likely outcome. And rest assured, the issue would end up back in the courts quickly. Canning made it there, and rocketed up to the Supreme Court, because the unconstitutionally appointed officials began exercising the powers of the offices they invalidly held, and the negatively affected people and entities quickly filed lawsuits. It should go without saying that the attorney general makes many decisions of great consequence; and the HHS secretary oversees a sprawling department through which 25 percent of the government’s $6 trillion-plus in expenditures passes. Trump is naming eccentric figures — not just the unconfirmable ones — to sclerotic, politicized government departments and agencies precisely to be disruptive forces. There could be a lot of good done by the right kind of disruptions. Bet the ranch on this though: The disrupted are going to sue. Immediately.
Assuming Democrats don’t succeed in the ongoing effort to steal a Senate seat in Pennsylvania, Republicans are going to have a six-seat majority. With no filibusters for appointments (thanks again, Democrats), even minimally qualified nominees should sail through. The extent to which Democrats can delay Trump’s appointments has been significantly reduced since 2016, and the sweep of Trump’s 2024 victory leaves the Democrats without even the bogus claims of illegitimacy they lodged eight years ago as a reason for resisting him at every turn. It is pleasantly obvious that the transition this time is far more organized and competent than it was in Trump’s first go-round. His major appointees — again, many of them are excellent — should be quickly confirmed. The new president should have no problem hitting the ground running.
Unless he makes problems for himself, which we’ve see that Donald Trump is wont to do.
I believe that the guardrails are going to work, that congressional Republicans will not disgrace themselves by undermining a Senate power that is a vital congressional check on despotic executive tendencies — a check in the service of liberty. I hope Speaker Johnson won’t give the time of day to a manufactured recess scheme that is patently designed to erase Senate constitutional authority.
But most of all I hope President-elect Trump comes to the conclusion that if a person, no matter how loyal, cannot reasonably hope to be confirmed by a Senate in firm Republican control, then that person should not be a nominee. This isn’t hard.
