As January approaches, the Republican Party will hold the reins of power in both the White House and Congress. However, President-elect Donald Trump’s strategy of appointing loyal supporters to vital Cabinet positions may lead to a potential standoff with the Senate, which has the constitutional duty of providing “advice and consent” on such appointments.
Trump and his Republican allies are considering the option of sidestepping the traditional Senate procedure by making use of temporary recess appointments, which can last up to two years.
This could ignite a legal battle that could reach the Supreme Court. If Senate cooperation is lacking, Trump may also seek to invoke an unprecedented power to compel the Senate into recess.
Throughout its history, the Supreme Court has addressed recess appointments only once. In 2014, the justices unanimously concluded that President Barack Obama’s recess appointments to the National Labor Relations Board were unconstitutional.
However, there was significant disagreement regarding the implications of that ruling. Five justices supported a narrow interpretation, insisting that the Senate was technically not in recess when Obama made his appointments and that supposed breaks must last at least 10 days before the president can act independently.
Writing for the dissenting justices, Antonin Scalia expressed that only the recess that takes place between annual congressional sessions should be recognized, leading to the conclusion that any appointments Trump might consider post-January would not be valid.
Insights from past conservative rulings can provide hints about the current court’s stance. At present, only two justices, Elena Kagan and Sonia Sotomayor, remain from the bloc that interpreted recess appointment powers more liberally during ongoing sessions. The trio of John Roberts, Clarence Thomas, and Samuel Alito backed Scalia’s opinion, creating obstacles for any future presidents interested in making recess appointments.
Since then, the Supreme Court’s composition has tilted further right, bolstered by Trump’s three appointments. The positions of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on this question remain untested, as does Justice Ketanji Brown Jackson, who was appointed by President Joe Biden in 2022.
The tension within the Supreme Court reflects a balance between honoring precedents and sticking to the original intent of the framers. A more conservative court might decide differently, although such changes are seldom made lightly. Justices who initially dissent often align with later rulings when cases of a similar nature arise.
Scalia, an emblematic figure of conservative jurisprudence, employed an originalist lens to assert that the intent behind the recess appointment clause from the 1787 Constitution was clear—senators simply could not be rapidly gathered to fill urgent vacancies.
He articulated in a courtroom session on June 26, 2014, that the recess appointment authority is outdated. The Senate can always reconvene on short notice, he argued, stating that the recess appointment power remains a means for presidents to bypass the Senate’s authoritative role—a tactic he noted was used in the reported case.
The question of how this issue could resurface in the Supreme Court is complex and unlikely to occur swiftly. Only an individual harmed by a decision made by someone appointed during a recess can typically have the standing to sue. The relevant case in point involved President Obama’s appointments made in January 2012, later leading to a court ruling nearly 2.5 years afterward in the dispute involving a local Teamsters union and a soft drink company.
Historically, notable figures who were initially appointed through recess appointments before receiving Senate confirmation include Chief Justice Earl Warren, Justice William Brennan, and Federal Reserve Chairman Alan Greenspan. However, there are also examples, such as John Bolton, who left office after not securing a Senate vote despite receiving a recess appointment as U.N. ambassador under President George W. Bush.
Trump’s potential strategy to necessitate a congressional recess could raise new legal questions. His allies suggest that there exists a constitutional provision allowing him to force the Senate to adjourn against its will, thereby facilitating recess appointments.
This argument stems from Article II, Section 3 of the Constitution, which addresses congressional adjournments and has never been invoked before. Trump’s supporters highlight this clause as giving the president leverage in instances of disagreement between the House and Senate about adjourning.
Despite this interpretation, some legal scholars—conservative ones included—argue that neither the House nor the Senate has the authority to compel adjournment of the other. According to this perspective, any adjournments must comply with Article I, necessitating consent from both chambers for breaks exceeding three days. Hence, presidential intervention may only be justified when one chamber opposes the other’s adjournment.
