President Donald Trump on Wednesday threatened to do something no president has ever done: formally adjourn Congress—that is, end Congress’s current session and force it into a recess—for the express purpose of installing his own people in federal jobs (possibly even judgeships) without having to follow the normal process of Senate confirmation. Doing so would subvert America’s constitutional design.
Begin with the Declaration of Independence. One of the complaints leveled there against King George III was that he had “dissolved Representative Houses repeatedly.” Having witnessed that abuse, the Framers did not give the president the power to force Congress into recess whenever he wants. Instead, as Alexander Hamilton explained in “Federalist No. 69,” “the President can only adjourn the national legislature in the single case of disagreement about the time of adjournment.” That stood in contrast with “the British monarch,” who could “prorogue [i.e., suspend] or even dissolve the Parliament” for any number of reasons. The Constitution, then, grants the president the power to adjourn only in the narrow, tie-breaking circumstance when the House and the Senate themselves disagree on the “time of adjournment.”
With that in mind, President Trump’s proposed scheme has an obvious problem. Right now, there is no relevant disagreement between the House and the Senate, and the Senate is holding formal sessions every few days. Those formal sessions mean that the Senate is not in recess and that President Trump cannot use the recess-appointment power to unilaterally make appointments. This, by the way, is exactly what the Senate did during President Barack Obama’s term to prevent him from making his own recess appointments. And in 2014, the Supreme Court upheld the Senate’s power to do that.
This is all to say: The president does not have the power to make recess appointments now, and does not have the power to force Congress into a recess to do so. The COVID-19 pandemic is unquestionably a grave crisis, one that requires a robust and effective government response. But it does not give President Trump the authority to override unmistakable constitutional limits.
All this talk of adjournments and recesses may sound technical. But many important principles of constitutional law are embodied in constitutional fine print. Most obviously, a president cannot just make Congress disappear when he wishes—in order to end an oversight investigation, for instance, or to prevent Congress from voting against a war he would like to wage. As for the question of staffing the government, the Supreme Court explained in its 2014 decision that the primary method prescribed by the Constitution for appointing officers of the United States—including the attorney general, Supreme Court justices, and more than 1,000 other varied jobs—is presidential nomination plus Senate confirmation. There is a reason for that: The requirement of Senate approval, as Hamilton explained in “Federalist No. 76,” is “an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters.” The president generally can’t just cut Congress out of the picture.
President Trump has been quite open about the fact that his purpose is precisely to cut the Senate out of the picture. If the Senate were in a proper recess, then it would have no role in making a recess appointment. But for the president to invoke the adjournment power to force a recess, in the absence of any disagreement between the chambers, is a wholly different matter. That would trample on the Senate’s constitutional prerogatives, and leave the Senate defenseless to protect itself.
The situation might be different if the Senate was truly failing in its constitutional duty to provide advice and consent on the president’s nominees and the predicate for invoking the adjournment power was satisfied. But what makes President Trump’s claim to an immense and unprecedented adjournment power so puzzling is that his own party holds the Senate. Not only that, the Senate has recently gotten rid of the filibuster for votes on presidential nominations, reducing the minority party’s leverage in the appointment process. And the Senate has not been shy about confirming Trump’s nominees, even ones with questionable qualifications. President Trump has already confirmed almost as many federal judges to the courts of appeals in just over three years as President Obama did in eight. (In the entire last two years of Obama’s presidency, two such judges were confirmed, and his Supreme Court nominee Merrick Garland didn’t even get a hearing.) President Trump is of course free to go through the normal appointment process. He would just have to persuade members of his own party to vote to confirm.
Justice Antonin Scalia, in a concurring opinion in the 2014 case about President Obama’s recess appointments, did not mince words in describing what he thought the recess-appointment power had become: an “ignoble” means of “enabling the president to circumvent the Senate’s role in the appointment process.” President Trump’s current ploy is far worse. He is seeking not to exercise a power that the Constitution expressly gives him to an “ignoble” end, but rather to demolish an express limit the Constitution places on his power in pursuit of that “ignoble” end—circumventing Congress. No crisis, not even the present one, is an excuse to do that.
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