Abuse of recess appointments raises constitutional law concerns

On the Sunday after the November 2024 election, President-elect Trump tweeted that candidates for Senate majority leader must agree to recess appointments in order to get his nominees “confirmed in a timely manner.” In the same tweet, he alleged that “[s]ometimes the votes can take two years, or more… and we cannot let it happen again.” He has also considered adjourning Congress himself if the Senate will not agree to a recess. And although Congress is currently in session, Trump could additionally take advantage of the annual spring break recess scheduled for April 14 – 25. For multiple reasons, the tactics he threatens would be unconstitutional.
Not surprisingly, prior to being elected as the new Senate majority leader, John Thune (R-SD) said “all options are on the table,” including recess appointments, to seat the president-elect’s nominees. Since then, Thune said that he hoped recess appointments will not be needed, depending on whether Senate Democrats confirm Trump’s nominees in a timely manner. However, the U.S. Constitution prohibits abuse of recess appointments, with very rare exceptions for urgent circumstances, a bar that is clearly not met here.
CREW’s research shows that there was not undue delay in confirming President Trump’s nominees in 2017. In fact, the average time for Senate confirmation of his initial cabinet nominees was 26 days. CREW and 69 other groups have urged the Senate to not allow recess appointments, emphasizing that:
As Justice Scalia wrote in his concurrence in the 2014 Noel Canning case, in which all nine justices agreed that the president had exceeded his recess appointment power: “[T]he limitation upon the President’s appointment power is there not for the benefit of the Senate, but for the protection of the people.”
In another key part of this case, the Supreme Court ruled that a recess of less than 10-days is presumptively too short for a recess appointment, and that “the Recess Appointments Clause sets forth a subsidiary, not a primary, method for appointing officers of the United States.” (Emphasis in original.) Given that ruling, President-elect Trump’s proposed recess appointments would not only require Congress to recess for at least 10 days, but they would also require that this discretion is not abused.
The text of the Constitution
In a piece on November 19, 2024, Center for Renewing America (CRA), argued that the Constitution does not require an emergency for the president to appoint executive officers during a Senate recess. (CRA was founded by former Trump cabinet member Russ Vought, who was recently nominated to serve again.) CRA also argued that “[t]he Courts and the Executive Branch have firmly rejected any notion that recess appointments are somehow constitutionally inferior.” But contrary to these assertions, recess appointments are constitutionally inferior as they are for exceptional purposes only.
The text of the Constitution makes clear that Senate review of nominees to prevent corruption and abuse of power is the primary method for seating high-level presidential appointees. Every new presidential administration fills vacancies among approximately 4,000 political appointee positions. Approximately 1,300 of the highest positions, including the incoming president’s cabinet and their principal deputies, ambassadors, heads of non-cabinet level federal agencies, and many White House and federal commission leadership positions, are subject to Senate approval. Under Article II, Section 2, Clause 2 of the U.S. Constitution, the president must make these appointments “by and with the Advice and Consent of the Senate[;]” meaning these principal nominees must be confirmed by the Senate before they can be permanently appointed.
In the 2014 Noel Canning case, the Supreme Court rejected President Obama’s use of recess appointments to seat members of the National Labor Relations Board–in one case, the Senate failed to act for approximately a year, leaving the agency without the quorum needed to enforce labor rights. This ruling also emphasized that the requirements of Senate advice and consent are the primary constitutional method for seating the president’s nominees. The Court stated that, “the Recess Appointments Clause creates an exception. It gives the President alone the 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.’ Art. II, § 2, cl. 3.” The Clause does not, however, grant the president “authority routinely to avoid the need for Senate confirmation.”
No constitutionally sufficient exceptional circumstances
Despite President-elect Trump’s assertions, there are no exceptional circumstances present that would justify reliance on the subsidiary, constitutionally inferior method of seating nominees by invoking the Recess Appointments Clause. In 2013 and 2017, the Senate amended its rules such that a filibuster-proof majority is no longer needed to approve presidential nominees–now, only a simple majority vote is needed–and Trump has the Senate majority. It seems that the president-elect’s argument is pretextual, and perhaps based on lack of confidence in his nominees.
Because of the extensive planning and vetting that took place during the transitions, no undue delays occurred for either President Biden’s or President Trump’s initial slate of cabinet nominees during his previous term. Senate records show that Biden’s cabinet members were confirmed and seated soon after their nominations were received on January 20, 2021, and by March 2021 at the latest, in an average of 32 days. In 2017, Trump’s initial cabinet members were also all confirmed in under two months, in an average of 26 days. Even conservatives state that Trump’s allegations about delay are “belied by the record.” Only one of Trump’s initial cabinet nominees, Andrew Puzder, was not confirmed; he elected to withdraw due to reportedly losing support from the president’s own party after tax and domestic abuse allegations were raised against him. In addition, the president-elect may also move forward to fill key positions with acting personnel who are empowered to ensure government missions–indeed, he has already begun to name acting officials to serve at the Department of Homeland Security.
Historical reasons for the checks and balances in American democracy
Even in the earliest history of our nation, recess appointments were limited to exceptional circumstances so that the Senate could ensure that the president did not abuse his authority. The text of the 1789 Constitution required Senate advice and consent, only adding the Recess Appointments Clause for vacancies “that may happen during the Recess of the Senate.” (Emphasis added.) In 2014, in Noel Canning, the Supreme Court reviewed the Federalist Papers to ascertain that the original intent of the clause was to provide for an emergency measure during a time when the Senate could not meet. This was a time when travel was on horseback, making meeting on short notice more difficult–but nonetheless, even then, the Constitution required Senate advice and consent unless the Senate could not meet.
In his concurrence in Noel Canning, the late Justice Scalia quoted Justices Ginsburg and Kagan to summarize the fact that the Senate is now “always available,” and that the recess appointments clause is “essentially an historic relic, something whose original purpose has disappeared.” The conservative legal icon went on to vehemently oppose recess appointments and to conclude that: “The need [the recess appointments clause] was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process.” (Emphasis added.)
In contrast, the Center for Renewing America argues that Hamilton did not significantly limit recess appointments and that current circumstances are exigent, alleging that:
Hamilton makes it clear that while recess appointments are typically considered an auxiliary method, they are constitutionally provided “in cases in which the general method was inadequate.” Long structural delays in the existing general method that averaged nearly five months during the first Trump administration and over four months during the Biden administration can reasonably be construed as an inadequacy.
As discussed above, current circumstances are far from being constitutionally inadequate or urgent enough to permit Trump to skip over Senate advice and consent. Further, CRA’s quote of Alexander Hamilton is taken out of context. In the same paragraph that CRA quotes, Hamilton also wrote in 1788 that the original Constitution “denotes [the recess appointments clause] to be nothing more than a supplement to the other” method clearly spelled out in the Constitution for the president “to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States[.]” And in the Federalist Paper which CRA quoted Hamilton, he is not addressing the president’s constitutional appointments; instead he addresses whether the president could appoint Senators, again showing the fallacy of their arguments.
The president may not adjourn Congress to force a recess
Another stumbling block is that the Constitution would require that both the House and the Senate agree to a recess. Fox News reports that some House Republicans are “exploring” whether Article 2, Section 3, “would enable House Speaker Mike Johnson to work with Trump to shut down Congress even if the Senate objects – clearing the way for his recess appointments.” Thomas Berry also stated in a National Constitutional Center podcast that, “as best we can tell, he’s proposing that pretty much as soon as he’s inaugurated, the Senate intentionally adjourns itself for the minimum length required to trigger a recess appointment, which under current Supreme Court precedent is 10 days.” Here again, one need look no further than the original text of the Constitution to see that this is wrong, as Article 2, Section 3 states on its face that 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.)
Edward Whelan describes the adjournment clause as “an obscure and never-before-used provision of the Constitution.” He wrote in The National Review, “I think that this plan is an outrageous attack on the Senate’s core duty to approve or reject the president’s nominations of his top officials.” CRA also acknowledges that this theoretical presidential authority has never been exercised, but minimizes the reasons why, by flatly asserting that “[i]t stands to reason that if one body were to pass an adjournment resolution and the other were not, the presidential power to adjourn would be activated (a sort of ‘tie breaker’ between the bodies).” However, in the American system of separation of powers, breaking a tie does not rise to the level of an “extraordinary Occasion” that the founders required for a president to adjourn Congress.
There are reasons why the presidential authority to adjourn Congress has never been invoked. When Trump first contemplated using this tactic in 2020, former Acting Solicitor General Neal Kaytal and constitutional law professor Thomas Schmidt opined that “[a] president cannot just make Congress disappear when he wishes.” They cite to the part of the Federalist Papers where Hamilton stated that clear constitutional limits on the ability of a president to force a recess stood in contrast to “the British monarch,” and that the requirements of Senate advice and consent are “an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters.”
Constitutional law experts continue to believe that any plan for the incoming president to force a 10-day recess to avoid Senate advice and consent to his appointments would be unconstitutional, also noting that American democracy does not have a king. Akhil Reed Amar, Josh Chafetz and Thomas P. Schmidt recently recounted that King George III had “dissolved Representative Houses repeatedly,” and so in creating our democracy:
The Framers [of the U.S. Constitution] were careful not to entrust the new office of president with such potent tools of “tyranny.” Instead, the president was given the power to “adjourn” the houses of Congress in only one narrow circumstance: “in Case of Disagreement between them, with Respect to the Time of Adjournment.” This power is so limited that it has never been used in all of American history.
Further, careful review of the Constitution includes Article 1, Section 5, which states that: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” It is therefore only in cases of disagreement about the timing of an adjournment–rather than whether an adjournment would be called–that a president would conceivably be needed on a constitutionally “extraordinary Occasion” to break a tie.
The views of Justice Scalia
As the national debate on recess appointments carries on, much has been made of Justice Scalia’s concurrence in the 2014 Noel Canning case (in which he was joined by Chief Justice Roberts and Justices Thomas and Alito). The conservative legal icon thought that the majority opinion was deeply flawed, and opined that: “It is inconceivable that the Framers would have left the circumstances in which the President could exercise such a significant and potentially dangerous power so utterly indeterminate.”
Justice Scalia also asked: “Can the President make an appointment during a 10-day break simply to overcome ‘political opposition in the Senate’ despite the absence of any ‘national catastrophe,’ even though it ‘go[es] without saying’ that he cannot do so during a 9-day break? Who knows? The majority does not say, and neither does the Constitution.”
Whelan believes that Scalia “would be aghast at the notion” of the president adjourning Congress himself to make recess appointments. Further, current Justices Gorsuch, Kavanaugh and Barrett would likely agree with Scalia that allowing recess appointments for any open position during a 10-day break would be a “tragedy” to the fundamental constitutional principles of separation of powers.
But even under the more generous majority opinion in Noel Canning, the answer is clear. Calling for recess appointments for President-elect Trump’s purposes would run afoul of the Supreme Court’s majority opinion and the founder’s clear intent. The parts of the Federalist Papers quoted by the Center for Renewing America to support its position are taken out of context. As the Supreme Court noted, Hamilton stated that recess appointments are limited to temporary appointments that “might be necessary for the public service to fill without delay.” That original text shows that any recess appointments must be necessary for the public service.
Conclusion and recommendation
In sum, contrary to Trump’s assertions, a delay in Senate confirmation and approval is not an adequate reason to meet the standard for recess appointments contemplated by the founders and upheld by the 2014 Supreme Court’s opinion. First, our research shows that there was no undue delay during Trump’s first term. But even if there was, although CRA may argue that the constitutional mandate for advice and consent of the Senate is inadequate because it takes time, it is not. As discussed, there is no reason to believe that the president-elect’s nominees would not win a majority vote in the Senate, if they are competent and qualified. Whether or not his party has the majority, there are no currently exceptional or even “necessary” circumstances to justify recess appointments. There have been no recess appointments since 2014, and there is no emergency or necessity that would justify the practice now. American democracy is for the people, not a king, and the people deserve better. The Senate should reject Trump’s pleas for recess appointments, and the president-elect and his allies must be aware that the U.S. Constitution does not permit him to adjourn Congress and instead requires that the Senate review his nominees.