Updated at 12:00 p.m. ET on April 17, 2020.
President Donald Trump seems to think he’s found a loophole in the U.S. Constitution. After years of understaffing his administration—in part the result of Senate Democrats delaying the confirmation process, but also the result of the president and Senate Republicans prioritizing judicial appointments and other business—the president suddenly is keen to fill vacant seats in his administration unilaterally, through “recess appointments.” And because the Senate isn’t currently in a constitutional recess, Trump plans to recess it himself.
The theory centers around the Constitution’s Article II, Section 3, which provides 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.” (Let’s call this the presidential-adjournment clause.) Trump seems to think that he can use this power to unilaterally dismiss both the House of Representatives and the Senate for a time of his choosing, thus allowing him to make recess appointments (per Article II, Section 2) at his pleasure.
This strategy would depend on a Senate majority voting to adjourn for a period that the House itself does not approve. Upon the Senate’s vote, and disagreement from the House (either by an affirmative vote or a refusal to vote), the president would then adjourn them all for as long as he wanted.
As commentators have quickly observed, this strategy has been floated in the past but never tried—and rightly so. It radically upends the normal process for appointing officers, a combination of presidential nomination and Senate approval, a process that was intended to prevent a president from filling up the federal administration with “candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure,” as Alexander Hamilton explained in Federalist No. 76. Requiring the Senate’s consent for the appointment of officers is “an efficacious source of stability in the administration,” he added.
That said, there is at first glance some plausibility to the president’s strategy. In the Supreme Court’s 2014 NLRB v. Noel Canning case, in which the Court unanimously struck down two attempted “recess” appointments by President Barack Obama because the Senate was not actually in recess, both Justice Stephen Breyer’s opinion for the Court and Justice Antonin Scalia’s concurring opinion suggested that a president might be able to create a recess by adjourning both chambers of Congress. Although their brief musings weren’t a binding “holding” of the Court, the fact that the justices discussed it in passing (what lawyers call dictum) means that it deserves to be taken seriously.
But when one does take the argument seriously, a crucial flaw soon appears. Although Article II of the Constitution empowers the president, in limited circumstances, to adjourn the Senate and the House “for such time as he shall think proper,” another constitutional provision expressly prohibits either the Senate or the House from adjourning for more than three days without the other chamber’s consent. Article I, Section 5 provides that “neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” This is the provision that caused the Senate, years ago, to use a rolling cycle of three-day adjournments, each punctuated by a momentary “pro forma” session. The Senate’s three-day adjournments do not require the House’s consent, nor do they open the door to a president’s recess appointments; as the Court held in Noel Canning, “three days is too short a time” to trigger the Constitution’s recess-appointment clause.
This prohibition on adjournments—let’s call it the three-day-adjournment clause—contains no exception for adjournments that are forced by the president. Nor does the presidential-adjournment clause itself state that it is an exception to the three-day-adjournment clause. Both provisions exist in the same document.
And when two provisions exist in the same Constitution, neither purporting to trump the other, the basic rules of legal interpretation counsel strongly in favor of finding a way to give effect to both of them. As it happens, these are themes that Justice Scalia himself emphasized in his magnum opus, Reading Law: The Interpretation of Legal Texts. As Scalia and his coauthor, Bryan Garner (one of the nation’s leading legal lexicologists), explained in their summary of the major rules of legal interpretation, “The provisions of a text should be interpreted in a way that renders them compatible, not contradictory.” This long-honored rule, they added, “is more categorical than most other canons of construction because it is invariably true that intelligent drafters do not contradict themselves.”
In this case, the rule is straightforward to apply: The Senate cannot adjourn for more than three days without the House’s consent, and vice versa. If the House and Senate disagree on how long to adjourn, then the president can adjourn them for the amount of time he deems proper, up to three days.
Other rules of legal interpretation reinforce this conclusion. For example, as Scalia and Garner explained, “If there is a conflict between a general provision and a specific provision, the specific provision prevails.” Here, the Constitution’s three-day cap on Senate adjournments without House consent is more specific than the much less precise provision allowing the president to adjourn both chambers for “such time as he shall think proper”—a supremely generalized provision.
Of course, in focusing on the specific legal flaws in Trump’s new tactic, one mustn’t miss the forest for the trees. The biggest problem with the president’s argument is the self-evident one: He is attempting to nullify a major part of the Constitution—the structural provision that denies the president unilateral power to fill up the government with department heads and other key officers who have not received the Senate’s “advice and consent.” His approach is dangerous enough in moments like the present, when the Senate is aligned with the President and this all seems like just a gambit for fast-tracking appointments through the Senate. But this approach, if accepted, would apply equally to times when the President is aligned with the House against the Senate, and it will be exponentially more dangerous in those moments when a President and House can conspire to adjourn the Senate and negate the Constitution’s advice-and-consent rule. The recess-appointment clause is a narrow exception to that rule, but it does not swallow the rule itself.
And for good reason. As Hamilton explained, the Constitution’s structure for the appointments process is crucial: “to prevent the appointment of unfit characters” for “personal attachment,” or for “family connection,” or for other motivations unworthy of the constitutional office the president swore an oath to faithfully execute. His warning was never so prescient.