President Elect Trump's Tweet About Recess Appointments (Updated)

I look forward to four more years of outrage based on misunderstandings of the Constitution.

We are only a few days removed from Trump's victory in the 2024 election, and his social media is already causing consternation about constitutional clauses.

Today, Trump tweeted:

Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner. Sometimes the votes can take two years, or more. This is what they did four years ago, and we cannot let it happen again. We need positions filled IMMEDIATELY! Additionally, no Judges should be approved during this period of time because the Democrats are looking to ram through their Judges as the Republicans fight over Leadership. THIS IS NOT ACCEPTABLE. THANK YOU!

As could be expected, the Washington Post completely misconstrued the argument here:

Trump, who last year promised that he will be dictator "for Day One" of his presidency and has repeatedly expressed admiration for authoritarian leaders, insisted that the next Senate Republican leader make it possible for him to fast-track his nominations over any opposition.

Writing on Truth Social on Sunday, Trump said: "Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner."

In April 2020, frustrated with the Senate's speed in confirming his nominees, then-President Trump threated [sic] to take the unprecedented step of unilaterally adjourning Congress to make recess appointments. Next year, Republicans are on track to have at least 53 senators, a comfortable majority to approve nominations, but Trump seemed to indicate that wasn't sufficient for his choices for federal jobs and judicial vacancies.

There are so many things wrong with this reporting.

First, there is no longer a judicial filibuster for executive branch appointments. Nothing would stop the majority party from confirming Trump's nominees with at least fifty votes, plus Vice President Vance's tie-breaking vote if needed. The reason why there may be delays would be due to Senate Democrats. As always, the minority party can use a range of procedural blocks to slow down the process, even if they cannot block the nomination outright. Trump's reference to votes taking up to two years reflects this sort of gridlock. The Recess Appointment Clause would only allow Trump to expedite appointing people if the minority party is throwing up roadblocks.

Second, in order for the President to make a recess appointment, the Senate must adjourn for (presumptively) ten days. I say presumptively, because Justice Breyer in Noel Canning couldn't have been bothered to provide a bright line rule. What does it take for the Senate to adjourn for ten days? The House would also have to agree for an adjournment of that length. Remember, one House cannot adjourn for more than three days without the consent of the other House. In other words, it would take a majority vote in the Senate, and a majority vote in the House, to create a recess of the requisite length. The Senate cannot allow Trump to make a recess appointment unilaterally. While confirming a nominee with fifty votes allows Senate Democrats to throw up procedural roadblocks, requiring the House's consent to adjourn creates even more opportunities for House Democrats to throw up procedural roadblocks. And the Republicans will likely have a razor-thin majority in the House. The Recess Appointment route does not seem that much simpler. More likely than not, if the House and Senate are an extended recess during the Summer or Christmas break, there would be no pro forma sessions, and Trump could make some recess appointments.

Third, there is nothing dictatorial about the the President and Senate using a process spelled out in the Constitution. The Recess Appointment Clause appears in Article II. If there is a recess of ten days, the President can make a recess appointment. Much fault lies with the Obama Administration, which attempted to make a recess appointment during the three-day breaks between pro forma sessions. That move was rejected 9-0 in Noel Canning. If President Trump makes an appointment during a ten-day break, he will have complied with Noel Canning. He would not be a dictator. Moreover, the Adjournment Clause is also in the Constitution. And Noel Canning cited that provision as a mechanism for the President to deal with congressional intransigence:

The Constitution also gives the President (if he has enough allies in Congress) a way to force a recess. Art. II, §3 ("[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper"). Moreover, the President and Senators engage with each other in many different ways and have a variety of methods of encouraging each other to accept their points of view.

[Update: I previously wrote that this quotation appears in Justice Scalia's Noel Canning concurrence; it appears in the majority.] The adjournment clause has never been invoked. I wrote about Trump's consideration of using it in April 2020. And in December 2020, a prominent progressive professor said Biden should use it. Hardball, as they say. Of course, the Court can revisit Justice Scalia's, and hold (correctly) that the vacancy must arise during the recess of the Senate. But until then, Trump is entitled to rely on the same Supreme Court precedents that all presidents can rely upon.

I look forward to four more years of outrage based on misunderstandings of the Constitution.