President-elect Trump’s allies have floated the possibility of suspending Congress in order to use the Recess Appointments Clause to install cabinet officials without Senate confirmation. In this episode, Ed Whelan of the Ethics and Public Policy Center and Thomas Berry of the Cato Institute join Jeffrey Rosen to preview this plan and debate its legal merits.
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Today’s episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Sedona LaMarre and Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, Gyuha Lee, Matthew Spero, and Yara Daraiseh.
Participants
Edward Whelan is a distinguished senior fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He directs EPPC’s program on The Constitution, the Courts, and the Culture. His areas of expertise include constitutional law and the judicial confirmation process. His most recent book is The Essential Scalia: On the Constitution, the Courts, and the Rule of Law (2020).
Thomas Berry is the director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor in chief of the Cato Supreme Court Review. Before joining Cato, he was an attorney at the Pacific Legal Foundation and clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit. Berry’s areas of interest include the separation of powers, executive branch appointments, and First Amendment freedom of speech.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources
- Center for Renewing America, “Brief: On the Article II Recess Appointments Clause” (Nov. 17, 2024)
- Ed Whelan, “A Terrible Anti-Constitutional Scheme of Recess Appointments,” National Review (Nov. 12, 2024)
- Ed Whelan, “The House Has No Authority to ‘Disagree’ with Senate’s Decision to Remain in Session,” National Review (Nov. 17, 2024)
- Edward Whelan, “The Radical Consequences of an Immediate Senate Recess”, National Review (Nov. 19, 2024)
- Thomas Berry, “Thomas Berry (Cato Institute) on Trump's Recess Appointment Plan,” Volokh Conspiracy (Nov. 15, 2024)
- National Labor Relations Board v. Noel Canning (2014)
- Alexander Hamilton, Federalist No. 76 (April 1, 1788)
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