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.
Please subscribe to We the People and Live at the National Constitution Center on Apple Podcasts, Spotify, or your favorite podcast app.
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)
Excerpt from Interview: Thomas Berry argues that a forcible adjournment by President Trump would face resistance from moderate senators and lead to litigation, similar to the Noel Canning case, to challenge the legitimacy of appointments.
Thomas Berry: I think it's unlikely that they will do so willingly, as Ed said. Even if the majority of Senate Republicans are inclined to go along with whatever President Trump wants them to do, there still are those more moderate senators and those more institutionalist senators. We've seen comments, I know, from Lisa Murkowski, from Mitch McConnell, I think from Susan Collins. I think it would be very hard.
I don't think you'll get to 50 or 51 senators in favor of intentionally granting a blank check for a 10-day adjournment and for unlimited recess appointments. So I think if push came to shove and President Trump really wanted to do this, it would have to be through this attempted forcible adjournment. And then I think you'd have litigation just like you had in Noel Canning.
It varies how easy or how hard it is for private litigants to have standing. But if anyone, for example, were appointed by this method and then adjudicated a dispute, an agency dispute or brought charges against someone, initiated an agency action, that person would immediately have standing to sue and challenge their authority, challenge their appointment. That's what happened in the NLRB case.
That's why it's not a coincidence that NLRB was the relevant party that ended up getting sued and challenged because they bring so many enforcement actions, there's a lot of people who are standing to challenge it. So that would end up being a long process. But ultimately, that's how it would get to the courts and we'd get an answer one way or another.
Excerpt from Interview: Ed Whelan argues that Trump's plan to bypass the Senate's advice and consent function for recess appointments would undermine the Constitution's balance of powers and lead to chaos, ultimately requiring a Supreme Court ruling.
Ed Whelan: Well, let me say at the outset that I would include myself as an ally of Donald Trump's. I am eager to make sure he doesn't do stupid, self-destructive things that would damage his presidency. And I think this idea is very much one of those. So, yeah, as Thomas indicated, the plan would be to do blanket recess appointments, completely bypassing the Senate's advice and consent function.
And I would emphasize that that advice and consent function is an essential check on the president. It's something that Alexander Hamilton in the Federalist Papers emphasized serves to tend greatly to prevent the appointment of unfit characters. Hamilton goes on to explain that a president who has to submit nominees to the Senate would be both ashamed and afraid to bring forward for the most distinguished or lucrative stations candidates who had no other merit than that of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
Now, to be sure, the recess appointment power exists in the Constitution. And it's intended, as Hamilton explains, as an auxiliary method of appointment that is nothing more than a supplement to the general mode of appointing officers, that is with Senate advice and consent. So what Donald Trump aims to do here, or at least what some of his advisors are encouraging him to do, would stand the appointment provisions of the Constitution on their head.
It would be a radical, irreversible change in the Senate's powers if it were to succeed. I don't think it will succeed, in which case it would generate chaos for many months until the Supreme Court said, no, you can't do that.
Full Transcript
View Transcript (PDF)
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Stay Connected and Learn More
- Questions or comments about the show? Email us at [email protected]
- Continue the conversation by following us on social media @ConstitutionCtr.
- Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate.
- Subscribe, rate, and review wherever you listen.
- Join us for an upcoming live program or watch recordings on YouTube.
- Support our important work.
