How Far Will Trump Go to Install His Unqualified Cabinet?
His recess appointments gambit is aimed at circumventing the Senate.
EVER ATTUNED TO LOOPHOLES, ambiguities, and blank spaces that might permit them to trample on previously unquestioned norms, Donald Trump and his transition team have seized upon a constitutional gimmick as a potential path to install loyalists, hacks, and cronies like Matt Gaetz to positions that require Senate confirmation, only without the confirmation part.
It is unclear exactly what’s behind President-elect Trump’s announcement that he will nominate Matt Gaetz to be the 87th attorney general of the United States. The simplest explanation is that Trump actually intends to install in the nation’s top law enforcement position somebody who will blindly protect him and his allies from legal jeopardy and use the instruments of the U.S. government to exact retribution on his political enemies. Gaetz certainly fills that bill.
It is possible, however, to see more complex strategies at play. Maybe Trump’s announcement that he will nominate Gaetz isn’t a serious attempt to install him as attorney general, but a political favor to Gaetz, giving him cover and a pretext to resign from Congress just days before the House Ethics Committee was scheduled to vote on releasing a report on allegations that he engaged in sexual misconduct and illicit drug use. Or maybe Trump is just throwing a bone to the GOP Senate as one side of a quid pro quo that goes something like this: “Okay, you can refuse to confirm Gaetz, and I won’t go crazy on you as long as you confirm everybody else I nominate.”
If the announcement is indeed just a head fake, Gaetz will never serve. He may never even be formally nominated, or the nomination may be withdrawn, or the Senate might refuse to confirm the nomination if Trump pushes it to a vote.
But prudence dictates that we take seriously Trump’s threat to put Gaetz in charge of the Department of Justice, even if Trump knows that he may not be able to bully a Senate majority into confirming the unqualified, scandal-ridden, widely despised former congressman. If Trump really is trying to make Gaetz the attorney general, it appears that his best bet for doing so—maybe his only option, and maybe the only way he can ram through other appointments of massively unfit individuals—would be through what is known as a recess appointment.
The recess appointment is a creature of two sometimes-clashing clauses of the United States Constitution. The Advice and Consent Clause says that presidential appointments of all “Officers of the United States” are subject to the “Advice and Consent of the Senate,” a phrase understood since the Washington administration to mean that major, cabinet-level appointments require Senate confirmation. At the same time, however, the Constitution provides a backup plan, the Recess Appointments Clause:
The President shall have 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.
The purpose of the Recess Appointments Clause seems obvious and reasonable: If a cabinet official resigns, dies, or otherwise leaves office during a time when the Senate is in recess and therefore cannot perform its advice and consent function, the president can temporarily fill the vacancy without obtaining Senate confirmation.
But the United States Supreme Court is not much enamored of obvious and reasonable readings of constitutional text. In 2014, the Court said in NLRB v. Canning that even though the express language of the clause is limited to vacancies “that may happen during the Recess of the Senate” (emphasis added), it should apply equally to vacancies that were already in existence prior to the recess. And the Court interpreted “the” recess to mean any recess, even one that takes place while Congress is in session, not just the recess between two sessions of Congress.
These interpretations converted what appears on its face to be a secondary, backup provision to allow a president to make temporary emergency appointments when the Senate is not available to perform its consent function into an alternative non-confirmation path for any presidential appointment for a period of up to two years. In other words, the Supreme Court interpreted the two constitutional clauses in a way that permitted an unprincipled, manipulative president to allow the exception (recess appointments without Senate confirmation) to swallow the rule (Senate confirmation).
Trump and his transition team have sent the clearest possible signal that they intend to drive a freight train through this constitutional loophole. Last week, Trump insisted in a social media post that the GOP Senate leadership “must agree to Recess Appointments” that extend for periods up to two years.
The Senate, of course, does not “agree” to or have any role whatsoever in recess appointments—that is something done unilaterally by the president when the Senate is in recess. What Trump is actually saying is not that the Senate should “agree” to recess appointments, but that the GOP Senate leadership should manufacture recesses for the specific purpose of giving Trump a path to sidestep the confirmation process in order to permit otherwise unconfirmable nominees like Matt Gaetz to serve in high government positions that would normally require Senate confirmation.
By demanding that GOP Senate leadership “agree” to recess appointments, Trump is not just signaling that he will take advantage of Senate recesses, he is telling the senators to step aside for the very purpose of allowing him to do so.
What’s to stop Trump from sidestepping Senate confirmation altogether and using recess appointments to fill his entire government with unfit, unconfirmable officials like Gaetz?
A first line of defense may come from a handful non-MAGA GOP senators who may side with Democrats in resisting Trump’s attempt to strip the Senate of the core responsibility to advise and consent. It’s possible that the newly selected Senate majority leader, John Thune, may reject the recess appointments tactic, even though he tweeted last week that it’s an option that’s “on the table.” But even if Thune refuses to fiddle with the Senate’s calendar to create new recesses for the specific purpose of allowing Trump to sidestep the Senate’s constitutional responsibilities, how far will he be willing to go?
Under the constitutional provisions governing congressional recesses, Thune could, if he wanted to, keep the Senate in session in a way that would frustrate Trump’s ability to make recess appointments. Article I, Section 5 of the Constitution says that neither the House nor the Senate can adjourn for more than three days during a congressional session without the consent of the other house. This is why the Senate holds pro forma sessions, going through the motions of gaveling the into session for a couple of minutes without actually taking any votes or otherwise conducting any legislative business—even when almost no senators are in Washington; it’s a bit of legerdemain that keeps the Senate from technically going into recess for more than three days at a time throughout an entire congressional session. Because the Supreme Court said in Canning that recess appointments can be made only during recesses of ten days or more, if Thune ensures that pro forma sessions continue to be gaveled in as usual, Trump’s ability to make recess appointments would be seriously limited.
But the converse of this is also true: If Thune wanted to enable Trump to make recess appointments, he could (1) refuse to gavel in pro forma sessions and (2) have his Senate colleagues vote (and ask the House to vote) to put the Senate in recess for longer than ten days. Since Republicans will control both houses beginning in January, those votes are likely to pass. And if the House and Senate disagree about the timing of the adjournment, the Constitution gives the president the power to adjourn Congress—and while no president has ever exercised that power and its limits have never been tested in court, Trump four years ago said he intended to do so.
IF THUNE AND THE GOP-CONTROLLED CONGRESS adjourn the Senate for long enough to clear the way for Trump to make recess appointments, the only remaining line of defense would be the courts.
The Supreme Court created a monster in the Canning case by reading the Recess Appointments clause so broadly as to give a president the ability to bypass the Senate entirely in making major appointments. That broad reading might be workable in a world of good faith and respect for norms, but it is woefully inadequate to prevent a manipulative president from writing the Senate’s power to advise and consent out of the Constitution.
If a challenge to a Trump recess appointment were to reach the Supreme Court, the Court could reject the reasoning of the Canning decision and make it clear that the Recess Appointments Clause is a narrow fallback provision intended only to give a president emergency authority to fill a vacancy that occurs during (but not before) a recess.
If it decided to reject the reasoning of the Canning decision, the Court would not necessarily have to formally “overrule” it. Read narrowly, the “holding” of Canning—the core legal ruling on the central issue of the case that is binding legal precedent—was that recess appointments made by President Obama during a three-day Senate recess in January 2012 were invalid. The Court’s suggestion that the appointments would have been valid if the recess had been longer (ten days or more) is arguably just “dictum”—statements made by the Court that were not necessary to the decision of the case, and therefore not binding legal precedent. If merely dictum, the current Court would not have to formally overrule Canning even if it rejected its reasoning.
At the end of the day, of course, whether it saw fit to formally overrule Canning or merely to disagree with its reasoning (as Justice Antonin Scalia did in his concurring opinion—more on that below), the Court could thwart a Trump attempt to circumvent the Senate’s advice and consent function.
But would the Court in its current composition block Trump? It’s not unthinkable. In his concurring opinion in Canning, which was joined by two justices who remain on the court (Alito and Thomas), Justice Scalia criticized Justice Stephen Breyer’s majority opinion on the ground that it would eviscerate the Senate’s constitutional advice and consent function. Scalia found that the words “happen during the Recess” mean what they say, and do not apply to vacancies that occurred prior to the recess. He described the majority’s reading as “atextual” and contrary to the constitutional separation of powers:
The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates. To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority’s insistence on deferring to the Executive’s untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court’s role in controversies involving the separation of powers and the structure of government. I concur in the judgment only.
The seeds of overruling or otherwise rejecting the reasoning in Canning are planted not only in Justice Scalia’s concurring opinion but also in Justice Breyer’s majority opinion. For instance, in a convoluted attempt to justify the majority’s “atextual” reading, Justice Breyer opened the door for the conservative textualists on today’s Court with a remarkable concession: “the most natural meaning” of the words “happen[s] during the Recess” is that it means, well, “happens” during a recess, not before. Breyer then goes on to try to explain why he prefers an alternative reading, but not convincingly.
Even if the Court were reluctant to be openly critical of Canning, there’s enough ambiguity and wiggle room in the decision to distinguish it from a case in which a president cynically manipulates the Recess Appointments Clause in a way that effectively deprives the Senate of its advice and consent function. For instance, Breyer’s opinion expressly recognized that the Recess Appointments Clause “sets forth a subsidiary, not a primary, method for appointing officers of the United States.” The primary method, Breyer acknowledged, requires the advice and consent of the Senate.
That alone should be sufficient to support a constitutional challenge to an abusive scheme to use recess appointments in a way that is deliberately designed to obliterate the Senate’s constitutional advice and consent function.
Then again, relying on this Court to thwart this president from getting what he wants stinks of wishful thinking. But it’s not out of the question, and it may turn out to be all we have.
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