Executive Power

Can Trump Order Congress Home and Unilaterally Fill Vacancies Via the Recess Appointment Power?

The president contemplates a sweeping exercise of executive authority.

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President Donald Trump has grown impatient with Congress. The COVID-19 outbreak has brought normal business to a near standstill in Washington, D.C., and the Senate is no longer confirming Trump's nominees to federal office at the steady clip that it once did. So Trump is now threatening an end-run around the Senate's constitutional duty to provide "advice and consent" on presidential picks.

"The Senate should either fulfill its duty and vote on my nominees or it should formally adjourn so that I can make recess appointments," Trump said on Wednesday. "If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers."

To be clear, the president has no independent authority to send Congress home. Rather, under Article 2, Section 2 of the Constitution, "in Case of Disagreement between [the Senate and the House of Representatives], with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper." In other words, in the rare instance in which the Senate and the House cannot together settle on a time for Congress to adjourn, the president may then—and only then—get involved. Since no such disagreement over the time of adjournment currently exists between the Senate and House, Trump currently has no power to act in this fashion.

Trump is not the first president with the bright idea of expanding executive power by misusing the Recess Appointment Clause, which grants the president the limited authority "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."

In 2005, for example, President George W. Bush, who was then butting heads with Senate Democrats over the fate of several of his nominees, simply waited until the Senate went home for its winter break and then made 17 recess appointments. The Senate reacted to this executive overreach with a novel defensive tactic: A member would remain on hand during future breaks in order to gavel the body into a pro forma session every few days, thus preventing the Senate from ever technically going into recess. That did the trick. As New York Times reporter Charlie Savage noted, "Senate Democrats repeated the move during breaks for the rest of Mr. Bush's presidency, and Mr. Bush did not try to make any further recess appointments."

President Barack Obama proved to be even more overreaching than Bush. In 2012, while the Senate was holding a pro forma session, Obama went ahead and made four purported recess appointments, including the addition of three members to the National Labor Relations Board. The unseemly act of making recess appointments when the Senate was not actually in recess earned Obama a 9-0 rebuke from the U.S. Supreme Court. "In our view," declared Justice Stephen Breyer in National Labor Relations Board v. Noel Canning, "the pro forma sessions count as sessions, not as periods of recess." Therefore, "We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is."

Breyer's Noel Canning opinion also anticipated the Trump scenario. The Recess Appointment Clause, Breyer wrote, "gives the President (if he has enough allies in Congress) a way to force a recess."

Here's what that might mean in the present context: Assume that Senate Majority Leader Mitch McConnell (R–Ky.) likes the sound of Trump's scheme to bypass the Senate in order to have a free hand to make recess appointments. So long as McConnell and his allies are willing to abdicate the Senate's "advice and consent" role, McConnell could, theoretically, engineer an adjournment battle with the Democratic-controlled House, thus paving the way for Trump to step in. But as Rep. Justin Amash (I–Mich.) correctly pointed out on Twitter, "Without one chamber participating in this improper scheme, [Trump's] action would be unconstitutional."

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  1. I would rather POTUS Trump not have to do this. The Congress knows what has to happen to prevent that.

    1. Golly; it’s very stately & judicious of you to prefer Trump not “have to do this”

      Meanwhile, back on planet Earth : This is nothing more than another reality-TV stunt from our reality-TV-show president. It’s no more serious than his blizzard of defamation lawsuits that everyone knows are a joke. If this stunt actually became anything more than the empty talk so typically of Trump it would blow-up in his face. Therefore you have to believe even DJT isn’t imbecile enough to do it.

      Though it would be entertaining if he tried. I suspect even the GOP Senators might suddenly grow a spine then. Here’s a prediction : Expect evermore bizarre meaningless stunts from our dumpster-fire POTUS as the election nears….

      1. Dear Leader is TeeVee President so it’s his job to entertain us. Give him a break.

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    2. “The Congress knows what has to happen to prevent that.”

      Of course they do, but which head on Mt Rushmore do they replace? I’d vote Jefferson. His politics are the most dead at this point.

    3. Oh look, another “libertarian” who has progressively discarded each of his principles as Trump demanded it from him.

      1. Horseshit. My strong preference is for Congress to do their jobs in the face of a national fucking crisis. Are you obtuse or something?

        1. It’s curious that during a supposed ’emergency’ the politics game is being played exactly the way it always is.

          You know things have become absurd when technically they’re never out of session, yet nothing ever gets done. What’s even more nutty is this is purely a way to infinitely string out appointments so they never get filled.

          Gee, if only there was some body of legislators who could change the law…

    4. Let me guess, Congress will have brought it on themselves? Jfc. Just admit you want a king and be done with this pretense.

      1. Just admit the constitution grants powers to the executive, among which is the power to convene and adjourn congress in certain circumstances.

        If your gripe is with the constitution, just say so.

        1. Eunuch’s gripe is with his conception

    5. Its not a matter of ‘have to do it’ – he can’t do it.

      As pointed out – only if there is a disagreement between the House and Senate about when to adjourn may he then step in. There is currently no disagreement.

      The issue is that Congress won’t do what he wants right now – vote or go home.

      IMO, his trying to force adjournment would be a huge mistake. Far larger than even Obama’s ‘pen and phone’ bullshit. Or Obama’s sneaking in recess appointments that were not urgent and could have waited.

      1. //only if there is a disagreement between the House and Senate about when to adjourn may he then step in//

        And if the President elects to convene only the Senate? What then?

        1. I don’t think the president has the power to do that, does he?

          1. he may, on extraordinary Occasions, convene both Houses, or either of them
            Nevermind. Good question.
            My take is that if the house is not convened, then there can’t be a disagreement between the House and Senate because the House cannot take any official position, not being in session.

    6. Can Mitch send a cable to Nancy that he wants to adjourn – she says NO! There you have a disagreement and Orange can then act?

  2. Nothing better than nothing happening in DC.

    1. If Congress is sent home, and the President is still in DC, doing stuff, then that is not “nothing happening in DC”.

  3. Since no such disagreement over the time of adjournment currently exists between the Senate and House, Trump currently has no power to act in this fashion.

    What is the agreed-upon time of adjournment?

    1. The twelfth of never.

    2. 420

      1. Edibles, vape, or are you a traditionalist?

        1. well, whaddya got?

          ~~Layne Staley

          1. Edibles, and man they rock.

            1. sweet. we make cookies once in awhile

    3. It is possible to have neither an agreement nor a disagreement.

      Is congress constitutionally obliged to adjourn ever?

      1. This falls under the heading of ‘things no one expected to happen, because they would be absurd’.

        1. Which is pretty much the standard practice of the US government at this point.

  4. How is this more unconstitutional than gun control laws?
    How is this more unconstitutional than universal house arrest?
    How is this more unconstitutional than asset forfeiture?
    What does the constitution mean anymore?
    Who is John Galt?

    1. What exactly are you arguing for here? That it’s another abuse, and Trump shouldn’t be trying it. Or, it’s another abuse, so Trump might as well?

  5. Trump is wrong and Congress is right here. Congress makes its own rules and it decides when and if it is in recess. I see no way the President can say otherwise.

    1. Yes, but in these times we have to suspend parts of the Constitution for the public good.

    2. Thanks for admitting that, John. Respect.

      1. That settles it then. No analysis required.

      2. Agreed.

  6. Can Trump Order Congress Home and Unilaterally Fill Vacancies Via the Recess Appointment Power?

    Sure… whatever it is that Dear Leader wants will be justified by some bullshitter telling us about something OBAMA did.

    1. I would certainly hope that a libertarian publication keep reminding us that both Teams are guilty. Certainly you won’t hear main team media reminding us.

    2. They really are the worst, aren’t they, racist?

      1. You missed a serious window of opportunity yesterday. Some racist asshole was getting bent out of shape because no one was labeling COVID-19 as the Wuhan Ching-Chong Slanty-Eyed virus— and how this was some sort of—- ???—- plot. [Yeah, I don’t get it either] I’m sure given your sensitivity towards any possible slight against Asians you would have had something to say. Where were you?

    3. You mean like making appointments after the Senate had gone home for the night?

      Pay your bills.

    4. American Socialist : Sure… whatever it is that Dear Leader wants will be justified by some bullshitter telling us about something OBAMA did.

      The hypocrisy here is pretty hilarious. Congress is already in session right now by the pro forma method of graveling a session open and closed over a few minutes. Trump cannot order Congress to convene because they’re already convened. Trump cannot order Congress to adjourn, because there’s no disagreement between the houses of Congress by which to base that action.

      And how do we know Congress’ current pro forma sessions are legitimate? Because Obama challenged them and the Supreme Court said Congress alone gets to define what constitutes a session. Yet the Trumpian lickspittles now taking his latest attempt to playact “presidential” seriously then howled with rage over Obama’s challenge.

      Despite the fact SCOTUS has ruled definitively in the interim……

  7. It’s not authoritarian if done by exploiting a loophole in the Constitution.

    1. That all depends on who is doing it.

    2. I don’t see how that necessarily follows. The Constitution is not by definition a non-authoritarian document. It is quite possible (or at least not self-contradictory) that it permits actions that can fairly be described as authoritarian.

  8. he 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;

    That’s the actual text, so when I read Root’s replacment of the actual text with his parenthetical, I don’t see his interpretation as being definitive at all.

    1. So based on that if he convenes and they don’t show he gets to appoint who he wants. note he has not given them stay at home orders and calling to convene would be counter manning that order if he had.

      I don’t see a problem and it doesn’t make him Hitler for doing what is legal if they won’t do their part

    2. Excellent point. I despise parentheticals and brackets because, as an attorney, I see them used more often than not to obscure the *actual* language of contracts, legal opinions, statutes, and the constitution.

      Root basically rewrote the constitution to make his argument and it is very dishonest.

      1. It’s an interesting linguistic ambiguity. In context, I have little doubt that “them” is intended to denote the two houses of Congress. That being said, however, it’s actually a poorly constructed sentence, in that from a strict grammatical standpoint, it’s not obvious what the intended antecedent is supposed to be. One could make a reasonably credible argument, even given the context, that “them” could refer to the Congress and the president, and that therefore if a disagreement as to time if adjournment exists between Congress and the president, he has the discretion to dismiss Congress until such time as he sees fit.

        It would be interesting to see how the courts would handle such a dispute.

        1. That is correct. I read “them” to mean the President and *either* house of Congress. Since this gives the President the power to convene just one house, it would make no sense, in my view, to have “them” refer to both houses since both are not required to be convened.

          Arguably, Trump can order the Senate to convene to confirm his appointments, and if they do not he can adjourn and proceed with his recess appointments. It isn’t a crazy reading. I think it is rather straightforward.

        2. I would keep the three uses of them consistent, referring to the House and Senate. The first and last are definitely referring to Congress. Why change the context for the second? I would expect a different wording for the second if it was between Congress and the President.

          1. //Why change the context for the second?//

            As explained above, because the President does not have to convene *both* houses. He can convene just one; for example, just the Senate. Between whom is the disagreement going to be in that instance? Naturally, the President and the Senate, not the Senate and the House of Representatives.

            I’m not saying the language is a model of clarity, but the reading seems to make sense in the context of the President having the power to convene *either* the Senate and the House of Representatives.

            1. Yeah, it’s still quite a stretch to claim that “them” includes the president.

              1. Don’t gloss over the obvious.

                What happens when the President convenes only the Senate? The disagreement about adjourning has to be between the Senate and the House of Representatives?

                *That* makes sense to you?

                1. If the House isn’t in session, how can they disagree?

                  1. They cannot. Which is why it is reasonable to interpret the clause as providing for disagreement between the President and the Senate or the President and the House of Representatives. That is why the second “them” refers to the President as one of the parties to the disagreement, rather than the Senate and the House of Representatives.

                    “Them” includes the President.

                    1. The point is this: If one reads Article II, Section 3 with the understanding that the President may convene only the Senate, he can deem the Senate to be adjourned if there is disagreement between the President and the Senate on the issue of the adjournment. And, during the adjournment, the President can make recess appointments.

                      I don’t see anything insane about what Trump said. Read carefully, and honestly, the Constitution gives the President this power. Of course, it worth having a debate about what constitutes an “extraordinary occasion.”

                      People are getting fixated upon the wrong condition precedent.

                    2. OK, I see your point. I will consider it.

              2. “Yeah, it’s still quite a stretch to claim that “them” includes the president.” Only if you don’t speak English.

        3. The first two “them”s clearly refer to the houses of congress. I think it is reasonable to assume that the third one does as well.
          I don’t think it’s a reasonable reading that “them” refers to the president as well. The president doesn’t adjourn himself, that doesn’t even make sense.

          1. Don’t be obtuse.

            “Them” in the second instance is unclear, at best, and in any event does not refer to adjournment, but **disagreement** about adjournment, a disagreement to which the President can be a party.

            Also, don’t gloss over the obvious question. What happens if the President convenes only the Senate? That is why “them” can be different in the second instance; because there is no requirement that the Senate and the House of Representatives be convened.

            Assuming the President convenes only the Senate, between whom is there going to be a disagreement, if any, with respect to adjournment?

            The President and the Senate.

      2. Geraje Guzba wrote:

        Excellent point. I despise …… an attorney, I …… often …… obscure the *actual* language of contracts, legal opinions, statutes, and the constitution.

        You shouldn’t advertise that.

        1. You’re hack job edits are about as honest as Root’s entire article.

          Fuck off, troll.

  9. You have to wonder who told him this because you know his dumbass certainly would never find out this power himself.

    Regardless- no disagreement between the chambers so no path. That is unless Congress wants to yet again wilt away and let this would-be dictator do whatever he wants.

    1. Barr. When it comes to the president suddenly realizing he has unchecked powers that no other president in history seemed to realize he had, it’s always Barr.

  10. “To be clear, the president has no independent authority to send Congress home. Rather, under Article 2, Section 2 of the Constitution, “in Case of Disagreement between [the Senate and the House of Representatives], with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.” In other words, in the rare instance in which the Senate and the House cannot together settle on a time for Congress to adjourn, the president may then—and only then—get involved.”

    Which is exactly what Donald said he was going to do in the immediate paragraph above this bit. TDS clearly impairs media comprehension. It’s like the author is suffering from a concussion.

  11. This is worse than the nuclear option. Trump will do anything for power. It’s really fucking scary if you ask me.

    1. What’s most scary is that those who would generally stand against authoritarian power grabs are largely cowed at this point. Look at this commentariat. If it was President Hillary Clinton proposing this exact same course of action, this commentariat would be on fire with calls for revolt and armed uprising. Instead the best we get are whispered “I don’t agree with the president…PBUH…on this one” The left and MSM will oppose it but only for the same partisan reasons that the right will support it. Because it’s the wrong team making the power grab.

      1. My thoughts exactly.

      2. Oh please.

        How about trying to read the actual constitution and debating the words that are there?

        “Authoritarianism” is not a constitutional argument if the power being exercised is granted by the constitution.

        1. Do you honestly believe that conservatives wouldn’t be having kittens if a Democrat did the same thing? Come on.

          1. There’s really no point in talking to Geraje. He’s full on conspiratard.

            1. Fuck off, Jeff.

              1. Fuck a garage, Geraje.

          2. Did you honestly read the clause in question, or default immediately to your TDS?

            Trump talks like a retard and he’s still miles above the rest of your morons.

            1. It’s rather funny, actually. When Obama was president I was a called a raging conservative who hated the president because he was black or whatever. Now I’m a raging progressive who hates the president because, well, I’ll let you fill in that strawman just as the Obama supporters filled in the strawman of why I hated him.

              It’s interesting how I can instantly morph from a raging conservative into a raging progressive. Or maybe I’m neither. Nah, that doesn’t compute in your partisan mind.

              1. To my very left leaning family I’m a horrible Right-wing conservative because I regularly oppose their groupthink.
                I often wonder why I’m drawn to this commentariat, especially when it’s mostly filled with people just like my family (with a different groupthink of course).
                I think it’s for the catharsis of being called a progressive. Keeps me balanced.

              2. No, you’re just a hack that dances around the issues.

                I don’t care what anyone else called you before, or what they will call you after.

                Did you read Article II, Section 3? It seems not. Because you’re a hack.

                1. Says the lawyer who dances around my point because he knows I’m correct.

                  1. What’s your point? That people call you names? Great point.

                    You are correct.

                    You’re a moron. There’s another one for you.

        2. Wouldn’t you consider slavery to be one of the most extreme forms of authoritarianism and the Constitution protected that. Or prohibition. I love* our constitution but I don’t think it stops all the authoritarian laws from being passed.

          *not exactly the right word but close enough

        3. ““Authoritarianism” is not a constitutional argument if the power being exercised is granted by the constitution.“

          Many authoritarian and indefensible acts have been committed under the guise of Court sanctioned “constitutionality”. Or would you hide behind the decision in Korematsu v. United States as perfectly constitutional?

          1. But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.
            Lysander Spooner

      3. ” If it was President Hillary Clinton proposing this exact same course of action, this commentariat would be on fire with calls for revolt and armed uprising.”

        Yep. Principles shminciples. Who need’s ’em?

        1. *needs*

      4. Yup. Sure, John et al. will say Trump is wrong here, but they will quickly forget it the next time AOC says something dumb and then suddenly it will be YOU MUST VOTE FOR TRUMP IN ORDER TO STOP AOC

        1. Or, John is wrong. Crazy option, I know.

  12. He could always threaten to convene them, instead; That he can do unilaterally. This would, arguably, give them the choice of either being actually in session, or having come into session, formally adjourning, giving Trump his recess.

    It could lead to some interesting litigation: Can a chamber of Congress really claim to already be in session when it doesn’t merely happen to lack a quorum, but is actively avoiding having a quorum?

    1. Nah.

      The TDS assessment based on a partial and deliberately obscured reference to the Constitution is the way to go.

      Really shameful to see so many regular commenters here fall right into the trap.

    2. Brett : “He could always threaten to convene them, instead; That he can do unilaterally. This would, arguably, give them the choice of either being actually in session, or having come into session, formally adjourning, giving Trump his recess”

      (1) Congress is in “session” now, but its only a pro forma session, where a handful of members gravel the session open and closed over a few minutes. So here’s the first problem with your stunt : When DJT demands they convene, Congress will say they’re already convened. And I seem to remember SCOTUS establishing Congress gets to define what does & doesn’t constitute a congressional session. Of course that was with a Democratic presidents so who knows how the Supreme Court’s reasoning would run here, eh Brett?

      (2) So let’s say Congress does briefly show-up en masse. So what? They’d just immediately return to pro forma sessions. None of Trump’s bullshit matters if he doesn’t have solid support from the GOP Senators in this little farce – and he doesn’t. McConnell made that very clear today.

      (3) But of course this is all nothing more than empty theatrics from our reality-TV-president. A few days ago it was Trump stomping his feet and claiming he could order the end of all social distancing. That lasted less than than twenty-four hours. Today it’s Trump stomping his feet and claiming he can order around Congress. I doubt this last a bit longer.

      It’s just presidential leadership as childplay-theatrics. George W Bush got 80-90% approval ratings after 911 because (despite all his issues) W responded as a president. Trump is the same incompetent buffoon today as pre-Coronavirus, and the country has reacted accordingly. Thus Trump’s stunts……

  13. Great post very informative thank you for sharing
    xaniya

  14. >>To be clear, the president has no independent authority to send Congress home.

    depends what the nine says

      1. might to a better job …

    1. The Bloody Nine?

  15. To address what action is really constitutional, it’s necessary to consider multiple layers of serious unconstitutionality:
    – Separation of powers, nondelegation, and enumerated powers are all grossly violated by Congresses, presidents, and Courts creating and maintaining the administrative state.
    – The vesting of the executive power in presidents is violated by presidents, Senates, and Courts agreeing that thousands of executive employees must be confirmed.
    – The vesting of the executive power in presidents is grossly violated by Senates grabbing the executive power to hire, by negating all appointments until they get who they would have nominated.

    For however long that presidents don’t use the executive power against others in government, this means that no one is nationally accountable, so agency rules, congressional logrolling, and judicial opining become the laws actually asserted in the land.

    The power that really needs to be used to resolve the unfilled appointments isn’t the recess appointment power, it’s the executive power.

    “Today the Senate is doing precisely what one delegate to the North Carolina ratification convention warned against: it is taking over the nomination power which the Constitution vested in the President alone. ‘[T]he President may nominate, but they have a negative upon his nomination, till he has exhausted the number of those he wishes to be appointed: He will be obliged finally to acquiesce in the appointment of those which the Senate shall nominate, or else no appointment will take place.’ The dangers posed by such a system are as real today as they were to the founding generation. It is time to rid ourselves of all ideological litmus tests save one: ‘Mr. or Ms. Nominee, are you prepared to honor your oath to support the Constitution as written and not as you would like it to be, if we confirm you to this important office?’”
    Eastman, John C. “The Limited Nature of the Senate’s Advice and Consent Role.” U.C. Davis Law Review, vol. 36, no. 3, February 2003, pp. 633-666.
    works .bepress .com/john_eastman/35/download/

    Don’t expect this president or this Senate to get to the heart of these problems. They are the problems.

  16. I don’t know if he can or can’t do this, but I wholeheartedly support it….????

  17. If the senate chooses to adjourn so that trump can male temporary recess appointments then it isn’t “improper”.

    The underlying question is whether the lack of confirmation is because the senate is isolating or because senators don’t like the nominees.

    1. Recess appointments expire once Congress reconvenes.

  18. What I found most interesting was the clear language in the Constitution that the president (if he is allowed to treat these fig leafs as an adjournment) seems to have unfettered power to decide when Congress can return. “[The president] may adjourn them to such Time as he shall think proper.” That seems pretty clear.

    So, while one president might say, “You are adjourned for 48 hours.”, and jam through all his recess appts in that window of opportunity…another president should be able to say, “I decree that you are adjourned until the final day of my presidency–3 years and 8 months from today.” The Constitution makes it clear here that there is no sort of “reasonableness” limit to how long he can prevent them from returning from adjournment.

    If so, then this is the nuclear button option of keeping Congress in session. “You can leave for Christmas. But if you do; I’m gonna keep you adjourned for months and months, or for years and years.”

    I hate this pro forma ruse both sides have used. I hope Trump challenges it in court and wins. Trump will appoint his usual mix of good people, bad people, awful people, and political whores. And that sucks. But future presidents will keep the ability to do recess appointments–and will, almost be definition, appoint more-qualified people than our current monster-in-chief.

    1. I noticed that too. The clear language of the text says that the president may adjourn Congress as long as he wants, but it says nothing about the procedures for reconvening after adjournment. Article I, Section 4, Clause 2 provides that “Congress shall assemble at least once in every Year,” which to me indicates that the president’s adjournment could only last, in practical terms, until the deadline for the next assembly of Congress, which the Constitution stipulates that Congress is free to defined by law. I don’t see how it would be constitutionally feasible for a president in, say, the first year of his term to simply dismiss Congress until the end of his term.

      1. Congress could simply pass a law (with a veto-proof majority, of course) defining the day on which it would subsequently convene. As long as Congress were able to convince the courts that the nation were no longer in the midst of an “extraordinary Occasion,” I don’t see how the president could have a leg to stand on.

    2. We completely agree on this point, I hate this pro forma ruse both sides have used. I hope Trump challenges it in court and wins. Trump will appoint his usual mix of good people, bad people, awful people, and political whores. And that sucks. But future presidents will keep the ability to do recess appointments…

      I would rather not have to litigate this at all. I’d much rather some deal get cut between the Congress and POTUS Trump.

      Could we stop paying Congress if POTUS Trump – ahem – adjourns them for a few years? 🙂

      1. I don’t think that’s possible. Congress is required by the Constitution to convene at least once a year.

  19. “‘The Senate should either fulfill its duty and vote on my nominees or it should formally adjourn so that I can make recess appointments,’ Trump said on Wednesday.”

    And people thought Trump would never agree with Obama about anything…

  20. Faithful originalist conservatives would note that only where “Vacancies that may happen during the Recess” may be filled that way. Art II, section 2, para 3. The vacancy[ies] involved here “happaen[ed]” far prior to the to-be-declared recess! But then who cares what the Constitution says when politics are afoot!

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