Recess Appointments

[Credence]

I do wonder what SCOTUS has to say; even if they are a conservative majority?

Also can the opposing party block a recess?

<snipped>

During the Bush Administration, Democrats blocked many of Bush’s preferred nominees, and he responded by appointing them during recesses. The annoyed Democrats then invented a new tactic — even when nearly all senators had left town, they would refuse to let the Senate recess at all. Instead, they’d hold “pro forma” sessions to keep the chamber technically active, so Bush couldn’t use his recess appointment power. Turnabout was fair play — once President Obama had been elected and the Republicans took the House, the GOP effectively prevented the Senate from ever recessing, by requiring constant pro forma sessions (the House must consent for the Senate to go into a lengthy recess). This prevented Obama from appointing some nominees the GOP had blocked — including three appointees to the National Labor Relations Board, and the director of the Consumer Financial Protection Bureau.

Supreme Court unanimously rules Obama’s recess appointments unconstitutional

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[Rich2018]

Beats me. I never considered this situation. I’m no parliamentarian. I’m a Doctor, Jim. I’ll just push the button on that little machine over there and we’ll see what happens… It’s working! I got a handful of M & M’s!

Maybe that's what election booths need...push for Democrat and get candy, or push for Republican to get Advil.

 

[humbolt]

Maybe that's what election booths need...push for Democrat and get candy, or push for Republican to get Advil.

There’s only one button. You never know what you’re going to get. Just because it may have a pretty exterior doesn’t mean it’s not toxic. See my first wife as an example.

 

[Rich2018]

There’s only one button. You never know what you’re going to get. Just because it may have a pretty exterior doesn’t mean it’s not toxic. See my first wife as an example.

Maybe so, but when you pick Republican, you k now whatever you get it's going to be bad.

 

[humbolt]

Maybe so, but when you pick Republican, you k now whatever you get it's going to be bad.

It’s refreshing to get an objective view.

 

[Rich2018]

It’s refreshing to get an objective view.

Let me know when you get one.

 

[humbolt]

Let me know when you get one.

I don’t think you’d know one if you saw one, so I won’t bother.

 

[maxparrish]

The second clause of Article II, Section 3 authorizes the President to convene or adjourn the Houses of Congress in certain circumstances. The President has frequently summoned both Houses into extra or special sessions for legislative purposes, and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised.​

​

https://constitution.congress.gov/browse/essay/artII-S3-1/ALDE_00013550/​

I doubt anyone could make a good faith argument that The Senate not confirming appointments is an "extraordinary occasion".

jAgreed.

 

[NWRatCon]

My question is: can the POTUS compel the Senate to recess if the House is out and the Senate won’t recess on their own?

I have not been doing much research on this issue, so this is off the top of my head, but... It has never been done.

There are a lot of "emergency" provisions in the Constitution. Fortunately, we rarely have an occupant of the Presidency who is as unscrupulous as Trump, and never, until Trump, one actually as ignorant of the Constitution and history. The reality is that the Constitution, as Chris Hayes pointed out, was drafted in a very different age, and contingencies then are much different than contingencies now. It takes one as bereft of scruples (and his more informed minions) to even consider creating a Constitutional crisis by manipulating the document to such nefarious ends. Also, unfortunately, we have never had a SCOTUS as corrupt as the present majority.

Clearly, the "recess appointment clause" is intended for emergencies, so it is rarely used. If one considers that the President is authorized to appoint about 4000 people who need to be confirmed by the Senate, and the churn that is routine in higher-level offices, 20-40 recess appointments/year is less than 1%. Even rarer is it being used for a major appointment.

The Constitution is basically a set of principles and guidelines, with a lot of play in the joints to allow for flexibility. It is not particularly well-designed to fend off attacks from within the system. This is a direct attack on one of those joints. It is an attempt to do something that is clearly not what the process intends as opposed to what can be gotten away with. Nixon tried that by "impounding" funds allocated by Congress. That was shot down by SCOTUS. Trump did something similar, by redirecting Defense allocations to the border. This SCOTUS took a different tack - which bodes ill for the future. As the LA Times noted,

"The case offers a stark example of how the president can defy the Constitution and its separation of powers with an assistance from the high court.

Early last year, Trump demanded $5.7 billion for the border wall, but the House of Representatives, under Democratic control, refused, triggering a partial government shutdown that lasted 35 days. The impasse ended when Trump signed a new spending bill that did not include the border wall funding he sought.

But a day later, he declared a national emergency and ordered the Pentagon to transfer $2.5 billion to pay for border wall projects. The administration said the new barriers, extending up to 130 miles, were designed to prevent “drug smuggling.” Later, Trump ordered the transfer of another $3.6 billion for new border barriers in Texas." https://www.latimes.com/politics/story/2020-07-31/supreme-court-trump-border-wall-construction

While SCOTUS didn't rule on the merits, as they are wont to do, they stayed the decisions below, until Trump was no longer in office. Then they dismissed it as moot: https://rollcall.com/2021/10/12/supreme-court-ends-legal-clash-over-border-wall-spending/ Justice delayed...

 

[Rexedgar]

I have not been doing much research on this issue, so this is off the top of my head, but... It has never been done.

If I had a nickel for every time I had heard this phrase in the last decade…….

There are a lot of "emergency" provisions in the Constitution. Fortunately, we rarely have an occupant of the Presidency who is as unscrupulous as Trump, and never, until Trump, one actually as ignorant of the Constitution and history. The reality is that the Constitution, as Chris Hayes pointed out, was drafted in a very different age, and contingencies then are much different than contingencies now. It takes one as bereft of scruples (and his more informed minions) to even consider creating a Constitutional crisis by manipulating the document to such nefarious ends. Also, unfortunately, we have never had a SCOTUS as corrupt as the present majority.

Clearly, the "recess appointment clause" is intended for emergencies, so it is rarely used. If one considers that the President is authorized to appoint about 4000 people who need to be confirmed by the Senate, and the churn that is routine in higher-level offices, 20-40 recess appointments/year is less than 1%. Even rarer is it being used for a major appointment.

The Constitution is basically a set of principles and guidelines, with a lot of play in the joints to allow for flexibility. It is not particularly well-designed to fend off attacks from within the system. This is a direct attack on one of those joints. It is an attempt to do something that is clearly not what the process intends as opposed to what can be gotten away with. Nixon tried that by "impounding" funds allocated by Congress. That was shot down by SCOTUS. Trump did something similar, by redirecting Defense allocations to the border. This SCOTUS took a different tack - which bodes ill for the future. As the LA Times noted,

"The case offers a stark example of how the president can defy the Constitution and its separation of powers with an assistance from the high court.

Early last year, Trump demanded $5.7 billion for the border wall, but the House of Representatives, under Democratic control, refused, triggering a partial government shutdown that lasted 35 days. The impasse ended when Trump signed a new spending bill that did not include the border wall funding he sought.

But a day later, he declared a national emergency and ordered the Pentagon to transfer $2.5 billion to pay for border wall projects. The administration said the new barriers, extending up to 130 miles, were designed to prevent “drug smuggling.” Later, Trump ordered the transfer of another $3.6 billion for new border barriers in Texas." https://www.latimes.com/politics/story/2020-07-31/supreme-court-trump-border-wall-construction

While SCOTUS didn't rule on the merits, as they are wont to do, they stayed the decisions below, until Trump was no longer in office. Then they dismissed it as moot: https://rollcall.com/2021/10/12/supreme-court-ends-legal-clash-over-border-wall-spending/ Justice delayed...

 

[NWRatCon]

If I had a nickel for every time I had heard this phrase in the last decade…….

you could buy a bottle without the content?

 

[maxparrish]

Even if the Senate stays in pro forma sessions, all it would take is for one Senator to make a motion that a quorum wasn't present for the process to begin. If it can't summon a quorum in 10 days, then it's open season on recess appointments. Look to the President's Day recess - in 2024, the Senate was only in pro forma session between Feb 13 and Feb 26 (with pro forma sessions on Feb. 16, 20, and 23 - see Orders). If the Biden Administration had wanted to go down this road, it could have had a single Senator make the quorum motion on Feb. 16, and if the Senate didn't muster a quorum for the Feb. 20 session, President Biden would have been free to make his recess appointments on Feb. 22, entirely consistent with Noel Canning.

Which is why Noel Canning was a flawed decision, not in judgement but in its narrow reasoning. All the justices agreed in Judgement, but not all agreed on the basis of the judgement. The court majority held that:

The Recess Appointments Clause of the U.S. Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length, but three days is not sufficient length.

Scalia and three others joined his opinion (Roberts, Thomas, and Alito) strongly disagreed. Scalia wrote:

"To prevent the President’s recess-appointment power from nullifying the Senate’s role in the appointment process, the Constitution cabins that power in two significant ways. First, it may be exercised only in “the Recess of the Senate,” that is, the intermission between two formal legislative sessions. Second, it may be used to fill only those vacancies that “happen during the Recess,” that is, offices that become vacant during that intermission. Both conditions are clear from the Constitution’s text and structure, and both were well understood at the founding. The Court of Appeals correctly held that the appointments here at issue are invalid because they did not meet either condition.

... It holds, first, that the President can make appointments without the Senate’s participation even during short breaks in the middle of the Senate’s session, and second, that those appointments can fill offices that became vacant long before the break in which they were filled. The majority justifies those atextual results on an adverse-possession theory of executive authority: Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not “upset the compromises and working arrangements that the elected branches of Government themselves have reached.” Ante, at 9."

NLRB v. Canning, 573 U.S. 513 (2014)

NLRB v. Noel Canning: The Recess Appointments Clause of the U.S. Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length, but three days is not sufficient length.

supreme.justia.com

Scalia dissent was joined by these three others, warning that the so-called "test" created by the majority would empower future Presidents to abuse their powers to circumvent the confirmation requirement and was clearly contrary to the Constitution.

I will also add that even in the "test" constructed by the majority reasoning it is on its face idiotic. Functionally it endorses the idea that the President needs to cancel the Senates constitutional right to confirm (or veto) a choice because a "recess" of 10 days is too long to wait?

Please...

But now that Trump is in power, it will be difficult to stop him.

 

[Rich2018]

I don’t think you’d know one if you saw one, so I won’t bother.

That's a very subjective view.

 

[NWRatCon]

Which is why Noel Canning was a flawed decision, not in judgement but in its narrow reasoning. All the justices agreed in Judgement, but not all agreed on the basis of the judgement. .....
But now that Trump is in power, it will be difficult to stop him.

The real problem is that the Senate was held by a different party. That will not be the case in 2025. The real question is, will any GOP Senator grow some?

 

[Rich2018]

The real problem is that the Senate was held by a different party. That will not be the case in 2025. The real question is, will any GOP Senator grow some?

No it's not
Because there's zero chance of that.

 

[maxparrish]

The real problem is that the Senate was held by a different party. That will not be the case in 2025. The real question is, will any GOP Senator grow some?

Had the court stuck to original meaning there wouldn't be this 10 day trigger nor consideration of vacancies that arise while they are in session. It is inevitable that the Senate will have to go on break longer than 10 days, while in session, sooner or later and Trump will pounce with those Senators who are Trumpers.

While it would be cleaner to deny Trumps nutcase appointments through a majority vote as far as I know the filibuster still applies to non-judicial confirmations. And the nominations keep getting worse...

Kash Patel to lead FBI, latest example.

 

[Cordelier]

"To prevent the President’s recess-appointment power from nullifying the Senate’s role in the appointment process, the Constitution cabins that power in two significant ways. First, it may be exercised only in “the Recess of the Senate,” that is, the intermission between two formal legislative sessions. Second, it may be used to fill only those vacancies that “happen during the Recess,” that is, offices that become vacant during that intermission. Both conditions are clear from the Constitution’s text and structure, and both were well understood at the founding. The Court of Appeals correctly held that the appointments here at issue are invalid because they did not meet either condition.

I think Scalia's definition of "happen" is overly restrictive. For a vacancy to "happen" it can either come into existence during the recess or it can have existence during the recess. There is no operative difference in the vacancy of the office if it happens to occur during a recess than if it happens to exist during the recess, is there?

 

[DCCougar]

It’s never been used to skirt the Senate....

And we've never had such a massively corrupt president-elect.

 

[Fearandloathing]

Chris Hayes was talking about “recess appointments” this evening. According to his reporting, they were come up with due to the long travel times needed for Congress to get from DC to their districts and back again. His example was the SOS dying while Congress was recess and the problems if the POTUS couldn’t appoint someone until Congress assembled. It seems that the House and Senate have to agree to go on recess,but there is another scenario. Thr House goes on recess and the Senate doesn’t,the POTUS has the authority to recess the Senate and tell them when to reconvene. If both are out for more than 1o days, the POTUS can make recess appointments. It’s never been used to skirt the Senate, but we are in uncharted territory in these times.

No mention in the link of the POTUS recessing the ASenate.

What are recess appointments and how could Trump use them to fill his Cabinet?

President-elect Donald Trump is considering recess appointments to skip over Senate confirmations for some of the most powerful positions in the U.S. government.

apnews.com

This link isn’t real clear, either:

https://constitution.congress.gov/browse/essay/artII-S2-C3-1/ALDE_00001144/

My question is: can the POTUS compel the Senate to recess if the House is out and the Senate won’t recess on their own?

What does it take to recess the senate?

Can the Republicans simply do it with their majority? In which case Trump gets his way.

I am sorry but I spent four years in high school being told the United States was the best governmental system in the world.

Now I find out it's the worst.

Trump has found a wide open path to dictatorship and he did it with three supreme court appointments.

You're not a democracy.

 

[maxparrish]

Possible roadblocks to appointments of Trump deplorables...

• The institutionalist: Outgoing GOP leader Sen. Mitch McConnell's (R-Ky.) every move will get top scrutiny. He isn't constrained by future leader elections, and loathes Trump.
• The moderates: Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) are in the position to be the critical swing votes for Thune on most issues, as we told you two weeks ago. Collins is also on retirement watch for 2026.
• The 2026 factor: Sen. Thom Tillis (R-N.C.) is up for reelection and is likely to face a strong Democratic challenger without Trump on the ballot.
• The holdout: Sen. Todd Young (R-Ind.) refused to endorse Trump this cycle.
• The newcomer: Newly elected Sen. John Curtis from Utah is expected to at least partially follow in the shoes of retiring Sen. Mitt Romney (R-Utah) as a more moderate voice in the conference, less willing to fall in line with Trump's whims.

 

[Cordelier]

... It holds, first, that the President can make appointments without the Senate’s participation even during short breaks in the middle of the Senate’s session, and second, that those appointments can fill offices that became vacant long before the break in which they were filled. The majority justifies those atextual results on an adverse-possession theory of executive authority: Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not “upset the compromises and working arrangements that the elected branches of Government themselves have reached.” Ante, at 9."

On Scalia's second point, I fail to see what is so magical about recesses between sessions that cannot be held to apply to recesses during sessions. If the Senate cannot act on a nomination because it isn't sitting, then does it make a difference as to the circumstances? I'm in favor of Noel Canning's 10-day rule because it avoids the scenario that occurred on December 7, 1903 when the Senate President pro tempore gaveled one session of the 58th Congress closed and then the new session opened. In the one-second interval between the two, President (Teddy) Roosevelt rammed through 160 recess appointments.

 

[Teatime]

I can remember a time when the maga cult were up in arms about Biden issuing some executive orders, but now Trump is plotting to try and bypass congress to get his preferred, unqualified, appointments made there isn't a peep! Just crickets!!

Do you like sports? Ever notice how fans will only cheer for their team, and 'boo' when the opposing team does the exact same thing?

 

[Cordelier]

Possible roadblocks to appointments of Trump deplorables...

• The institutionalist: Outgoing GOP leader Sen. Mitch McConnell's (R-Ky.) every move will get top scrutiny. He isn't constrained by future leader elections, and loathes Trump.
• The moderates: Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) are in the position to be the critical swing votes for Thune on most issues, as we told you two weeks ago. Collins is also on retirement watch for 2026.
• The 2026 factor: Sen. Thom Tillis (R-N.C.) is up for reelection and is likely to face a strong Democratic challenger without Trump on the ballot.
• The holdout: Sen. Todd Young (R-Ind.) refused to endorse Trump this cycle.
• The newcomer: Newly elected Sen. John Curtis from Utah is expected to at least partially follow in the shoes of retiring Sen. Mitt Romney (R-Utah) as a more moderate voice in the conference, less willing to fall in line with Trump's whims.

Also take into account whoever Gov. DeWine replaces Vance with in the Senate.

 

[humbolt]

That's a very subjective view.

Pretty objective in the real world.

 

[maxparrish]

On Scalia's second point, I fail to see what is so magical about recesses between sessions that cannot be held to apply to recesses during sessions. If the Senate cannot act on a nomination because it isn't sitting, then does it make a difference as to the circumstances?

Well, magical or not because “Officers of the United States” must be appointed by the President “by and with the Advice and Consent of the Senate.” U. S. Const., Art. II, §2, cl. 2. it is the law that assigns and separates the powers between the branchs.

That general rule is subject to one Constitutional exception: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Id., §2, cl. 3.

All these words and their original and formal meaning are not in dispute. To be sure, we use words such as "recess" colloquially but the Constitution has a formal 18th century meaning.

There are 'Sessons' and "the Recess" (not "a recess" but "the Recess". They are distinctly different. Congress meets twice a year in "Sessions" and the period in between is "the Recess". This distinction exists to prevent the President from nullifying the Senates Constitutional role and power in the appointment process during a simple break or adjournment. It recognizes that there is a lengthily gap between Sessions of Congress, for which the President might critically need the advice and assistance of an official. And if there is a vacancy "that happens" in that period the exception applies.

The 10 day rule is solely an invention of modern courts, and not even a logical one. The whole point of the Constitutional clause is to cover was used to be a very long period between sessions. It was not made to address something as brief as 10 days because there is NO reason to rush through a vacancy and avoid the confirmation process because the Senate doesn't meet for a 10 day period. Perhaps a 30, 60, or 90 day rule but not one that allows a President a way to ignore the right to confirm.