Could President Donald Trump use his constitutional recess appointment powers to replace a Cabinet official? That seems to be the question of the day, but it may have already been answered by a 2014 Supreme Court decision.
According to several reports on Thursday, President Trump might be considering using a recess appointment to name a replacement for his Attorney General, Jeff Sessions, if Sessions were to resign or to be fired by Trump.
While that remains to be seen, recess appointments in general have generated a lot of controversy in recent years, and a major 2014 Supreme Court decision better defined the President’s Article II power to name officials, without Senate confirmation, while the Senate is away from Washington.
“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,” reads the clause in the Constitution’s Article II, Section 2.
In the National Constitution’s Interactive Constitution, legal scholars John McGinnis and Peter Shane looked at the origins of the Recess Appointments clause and how the Court’s 2014 decision in National Labor Relations Board v. Noel Canning explained a President’s options.
“The Recess Appointments Clause was included in Article II in the apparent anticipation that government must operate year-round, but Congress would typically be away from the capital for months at a time,” they explained. Over the ensuing decades—and extending to modern times when Congress itself sits nearly year-round—the somewhat awkward wording of the Clause seemed to pose two issues that the Supreme Court decided for the first time in 2014.”
“First, does the power of recess appointments extend to vacancies that initially occurred while the Senate was not in recess? Second, may a period of Senate adjournment trigger the President’s recess appointment power even if that period of adjournment occurs during a Senate session, rather than between the adjournment of one session sine die and the convening of the next?” McGinnis and Shane asked.
In the Noel Canning decision, a unanimous Supreme Court said if an “intrasession” recess lasts 10 days or longer, a President can make recess appointments, including for vacancies that happened while the Senate was in session. The person appointed by the President would serve in office through the end of the next annual session.
An intrasession recess is a break taken by Senators during the annual January to December session of Congress, such as the traditional August break. In comparison, an “intersession” recess is the brief break between two annual sessions of Congress.
“If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause,” said Justice Stephen Breyer in the Court’s opinion in Noel Canning. “And a recess lasting less than 10 days is presumptively too short as well.”
In a concurring opinion, Justice Antonin Scalia agreed with the decision’s outcome, but he worried that it granted the President too much power. “The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments. Henceforth, the Senate can avoid triggering the President’s now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted,” Scalia said. “How this new regime will work in practice remains to be seen.”
Currently, the Senate uses these three-day pro forma sessions during an intrasession recess to prevent any possibility of an unexpected presidential recess appointment. The practice goes back to Harry Reid’s time as Senate Majority Leader. President Barack Obama also unsuccessfully tested their legality in the Noel Canning case.
This August, if and when the Senate decides to take an extended break, it could pass a concurring resolution with the House to do so. Democrats in the Senate then could filibuster to block the resolution, effectively ending the possibility of a recess appointment. Or the Senate could use pro-forma sessions to keep it technically in session during the break.
One possible exception under the Noel Canning decision would be a recess appointment caused by a “national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response.” But Breyer added that “political opposition in the Senate would not qualify as an unusual circumstance.”
Scott Bomboy is editor in chief of the National Constitution Center.
