Noel Canning Redux: Justices Breyer and Scalia wrote that the President could use the adjournment power to block Senate "intransigence" (Updated)

No President has ever adjourned Congress before. Yet at least.


Today, President Trump said he could adjourn Congress as a means to make recess appointments.

"If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers of Congress."

He also referred to pro forma sessions as "phony" and a "scam." I suspect President Obama would agree with him on this point at least.

Article II, Section 3 provides:

[The President] 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

No President has ever used the adjournment power–certainly not to make recess appointments. But this idea is not novel. Justice Scalia flagged it in NLRB v. Noel Canning (2014).

In that case, the Obama Administration asked the Supreme Court to view the recess-appointment power as a "safety valve" against Senatorial "intransigence." The majority opinion by Justice Breyer rejected that position. Breyer explained that the President has other trump cards at his disposal: namely, the adjournment power. He wrote:

Finally, the Solicitor General warns that our holding may "`disrup[t] the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.'" Brief for Petitioner 64 (quoting Morrison v. Olson(1988)). We do not see, however, how our holding could significantly alter the constitutional balance. Most appointments are not controversial and do not produce friction between the branches. Where political controversy is serious, the Senate unquestionably has other methods of preventing recess appointments. As the Solicitor General concedes, the Senate could preclude the President from making recess appointments by holding a series of twice-a-week ordinary (not pro forma) sessions. And the nature of the business conducted at those ordinary sessions — whether, for example, Senators must vote on nominations, or may return to their home States to meet with their constituents — is a matter for the Senate to decide. 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.

Let's use an example. If the Republican-controlled Senate wants to adjourn right now, and the Democratic-controlled House does not want to adjourn right now, there would be a "disagreement with Respect to the Time of Adjournment." Here, the President's "allies in Congress" (Senate Republicans) could set the stage for him to adjourn Congress. And once the Senate is adjourned for more than ten days, per Noel Canning, the recess appointment power is activated.

Justice Scalia concurred, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. They made a very similar position: the President's friends in Congress could help trigger an adjournment:

The majority replaces the Constitution's text with a new set of judge-made rules to govern recess appointments. Henceforth, the Senate can avoid triggering the President's now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted. Ante, at 2555-2556. How this new regime will work in practice remains to be seen. Perhaps it will reduce the prevalence of recess appointments. But perhaps not: Members of the President's party in Congress may be able to prevent the Senate from holding pro forma sessions with the necessary frequency, and if the House and Senate disagree, the President may be able to adjourn both "to such Time as he shall think proper." U.S. Const., Art. II, § 3. In any event, the limitation upon the President's appointment power is there not for the benefit of the Senate, but for the protection of the people; it should not be dependent on Senate action for its existence.

All 9 Justices seemed to agree that the adjournment power could be used to facilitate recess appointments.

Update: My original post attributed a passage to Justice Scalia's concurrence that actually appeared in Justice Breyer's majority opinion. I've revised the post to include Breyer's and Scalia's arguments. They largely agree on this point.

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  1. Why would Mitch assist President Trump in this when Mitch is the one holding these scam sessions and blocking President Trump from making recess appointments?

    1. Why would any Republican member of Congress able to understand a demographic projection embrace this idea, let alone for the benefit of Donald J. Trump?

    2. The Senate can’t adjourn if the House is in session. They must agree. There’s some technical details which you can look up if you care, but that’s the gist of it.

      1. The technical detail is just exactly that the President can order them adjourned if they disagree.

  2. We need a good constitutional crisis. Not enough drama these days.

    1. It literally says in the Constitution that President Trump can do this.

      Where is the constitutional crisis?

    2. Just because the President hasn’t used the power before doesn’t mean it is a “constitutional crisis”….Here it is anything but. The constitution clearly gives the President the authority.

    3. Crisis? No. “Constitutional hardball” yes.

  3. Yet another case for the unitary executive.

    The power over executive agencies stems from the President. If Congress is denying the President his appointees then he should exercise his authority to shut down agencies who are being denied hearings.

    1. Didn’t “unitary executive” used to mean that the Presidency is held by one person, not a committee like in Switzerland and in the former Yugoslavia?

      1. It means that all the powers of the executive branch are the President’s powers, only delegated to other officers. The first words of Article II, Section I:

        “The executive Power shall be vested in a President of the United States of America.”

        Every bit of power of the executive branch is the President’s power, and can be exercised directly by the President if he sees fit. That’s what “unitary executive” means in this context.

      2. Your question was addressed and decided, at least for the time being, by SCOTUS in Noel Canning. If you’re really interested in the issue, I’d recommend reading some of the amicus briefs filed in the case (accessible on the SCOTUS website, I believe), as they go into the history and practice of the appointments clause and power over the last 200+ years, reaching different conclusions.

      3. Sorry. Meant to reply to your other comment about the historical interpretations of the recess appointment

    2. The president has no such authority. His legal duty is to take care that the laws passed by Congress are faithfully executed. Whether he has the people he wants in charge of the agencies or not.

      1. And how is he to see the laws faithfully executed if he can’t fire subordinates who insist on doing something else?

        1. 1) The topic is actually failing to confirm appointees, not firing people.
          2) The claim I was responding to was that he could “shut down” agencies if his nominees aren’t confirmed. Not whether he could fire a person who wasn’t doing his job properly.

      2. The director of any agency has the authority to decide how to execute the actions of the agency. The director draws his authority from the appropriate cabinet secretary. The cabinet secretary draws his authority from the President.

        The President can exercise that authority however he wants. If he wants to instruct the director (or acting director) to shutter the agency then he can do so.

        1. The cabinet secretary does not draw his authority from the president, and the director of an agency does not draw his authority from a cabinet secretary. You are confused about our system of government. Departments and agencies, and the positions in them, were created by statute. Cabinet secretaries get their jobs by a collaboration between the president and the senate. Their responsibilities are defined by statute, not by the president. The president’s job, and theirs, is to carry out those statutes. Faithfully.

          1. Not exactly correct. The point made in Marbury is that some of the power of cabinet secretaries derives expressly and solely from the president, and the some is created by statute and cannot be altered unilaterally by the president.

  4. The recess-appointment clause says

    “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.”

    Now, I would think, and this is what I presume eye-rolling professors would call a naive reading, that this doesn’t mean vacancies which simply *exist* in the recess, but vacancies caused by people leaving their office during the recess.

    But never mind the naive reading, how has this been interpreted in practice?

    1. Noel Canning answered that. They recognized it as ambiguous, as I believe some founders did, and held based on the purpose of the clause being to allow the proper functioning of the executive that it should be given a broader reading allowing them even if it was a pre existing vaccancy.

    2. But in fairness to you, that isn’t naive. That part of the opinion was 5-4. And I happen to agree with you and the dissent.

      1. Yeah. Scalia’s argument was coherent. Breyer’s “but you can recess-appoint in intra-session recesses after ten days” is what makes a hash of this.

        1. That was a different part of the opinion. There were several questions
          1. Are intrasession recesses for the purposes of the clause
          2. Can the vacancy be preexisting
          3. What about pro forma and other short adjournments, or more generally how is a “recess” defined

          1. Scalia argued that recess means the formal inter-term recess. However it was Beyer’s opinion that created the10-day intra-term recess concept.

            1. I get that but none of that has anything to do with the question originally posed to start this comment train.

    3. 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!

  5. Either that, or he could call the Senate into session.

    I mean, really into session, not this fake being in session that’s going on currently, where there’s no quorum even in Washington, let alone in chambers.

    “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;”

    I’d say he’s got an adequate excuse for doing it. About time McConnell sucked it up and did his job.

    1. He can call them to session, but he can’t tell them what to consider and/or do. So I don’t know that that is helpful.

      1. Agreed, a President can’t the Senate what to consider, but Senate President [Pence] can interpret the Senate rules in any way he pleases, without the potential for review by any Court. Typically, the President of the Senate allows — but is not required to allow — a Parliamentarian to make the interpretations.

        1. He may be able to interpret, I’m not sure how far that power extends I admit to not having any experience or Senate procedure, but he can’t change. So even then he can only help to the extent the rules may be ambiguous. Are the rules regarding pro forma sessions ambiguous?

          1. “So even then he can only help to the extent the rules may be ambiguous. Are the rules regarding pro forma sessions ambiguous?”

            Remember the “nuclear option”? It consisted of nothing more than a parliamentary ruling that the rule that made judicial nominations subject to filibusters didn’t, really. And that rule wasn’t even the tiniest bit ambiguous.

            1. But who did that and under what authority? I thought it was Reid and the democrats making it more of a change in senate rules. It certainly wasn’t the VP or President Pro Temp acting in the role of presiding officer. So that example seems inapposite.

              1. It was the parliamentarian, IIRC. And it wasn’t a change in the Senate rules, that’s the point: They didn’t have the votes to change the Senate rules.

                But they did have the votes to say that they meant the opposite of what they actually said.

                Hm, pretty common theme in constitutional law these days, actually.

                1. It was the parliamentarian, IIRC. And it wasn’t a change in the Senate rules, that’s the point: They didn’t have the votes to change the Senate rules.

                  I thought the “nuclear option” was the parliamentarian making a ruling and the Senate voting to overrule the parliamentarian, which only required a simple majority vote.

                  Changing the Senate rules normally requires a 2/3 majority.

                  1. The key point is, they didn’t change the rules. They just decided to pretend they meant the exact opposite of what they actually said.

                    Like I said, a major theme in constitutional law: You don’t need to be able to change the rules, if you’re in a position to lie about what they are, and make it stick.

        2. No court can review but the Senate itself can. Any ruling by Pence can be overridden by a simple majority of Senators.

      2. If McConnell continues to refuse to act on nominations even if a quorum is present, that’s going to be really hard for him to explain to Republican voters. So my take on it is that he wouldn’t like it, but he’d start running through the nominations again.

        He has to maintain, after all, at least the illusion that he’s doing their will.

        1. There isn’t a single elected politician in Washington that is on their second or more term who is doing the voters will.

          Not a single one. They are all frauds.

          1. It must be sad to be that disaffected.

            1. Better than being delusional, anyway.

              1. Says the birther.

                These are your followers, Prof. Volokh.

                Ouch. Very ouch.

  6. It’s ironic how Obama administration positions come back to bite Dem’s. I do not like many of the communications of Trumps so don’t lump me into what I am not.

    The issue isn’t the delays created by or under the control of McConnell. The issue is how long are individual senators allowed to debate a nominee. The “blue slips” are not used anymore but, if a Dem wants to hold up a nominee for 2 or 3 days of debate, they have the ability to clog the calendar for 2-3 days. There are only so many days Congress is open. Changes to the filibuster rules for judicial nominations have circumvented this delaying tactic.

    It would be an extreme circumstance that I would want to find all possible ways to avoid but, as set out in the article and Constitution, there is a plausible, logical, realistic way for a President to adjourn Congress. Dem’s supported Obama doing it but they would never support Trump or any republican taking identical action. Sad state of politics.

    1. Blue slips are still in use for district court nominees.

    2. It’s weird to suggest that wanting to debate a nomination is deemed “clogging” the calendar, as opposed to doing their job.

  7. Text: …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…


    Disagree. Pace Scalia, this power is a shadow of prorogation, one of the sovereign’s prerogative powers. The Founders’ innovation is that it only “activates” when there is a disagreement between the elected representatives. Debate over whether intrasession recess appointments will ultimately survive Constitutional scrutiny aside, there are many flavors of adjournment and recess (see: for a worthwhile primer) but the prorogation power of the sovereign only applied to the dissolution of the Parliament prior to a general election or the cessation of all business between the sessions of a multi-year Parliament (it actually brings all business to a close, everyone doffs hats, and the sovereign declares him or herself pleased with all the work they’ve done), and so it would likely be interpreted only to apply to the simultaneous sine die adjournment of both chambers, not necessarily every instance of the 1.5 continuity of business provisions (that apply to any recess within a biennial Congress), especially as the House can shut down for as long as it wants while remaining in the same legislative day, the mace in its rest. (The Senate is much more free in its sine die adjournments.)

    Of course, Bannon could always just sneak in and steal the mace. That might work.

    Mr. D.

    1. Also: If you give the Executive the power to adjourn the House during a legislative day, he or she could derail any legislation by simply adjourning both chambers sine die. That’s the sort of thing that leads to John McEnroe impersonations. (Oaths on tennis courts.)

      The constitutional provision, pace possibly clerk-written dicta, specifically says that the disagreement would be about the time of the adjournment, and specifies the power to set a return date, leaving the power to set an adjournment date implicit. Obviously, it’s the prorogation-correlative, which only comes into play when both chambers have finished their curricula, but can’t agree on the timing of summer vacation.

      But as with all of the Constitutional arcana argued about during this administration, the real question is what they might be trying to distract the lawyers from.

      Mr. D.
      (a l’escalier)

  8. Shorter: “If Trump does it, it’s not illegal.”

    1. I wouldn’t say that, but I would go so far as to say, “Trump doing it doesn’t make it illegal.”

    2. Obama does something unprecedented, media: Leadership. Visionary!
      Trump does something unprecedented, media: Dangerous, Illegal!

      1. Actually, I would say that depends on what the specific something is.

  9. Its a pretty obvious portion of the Constitution. 1/2 of 1 branch cannot overrule another branch forever. Moreover, this is a well thought out provision because the Senate is designed to be slow in its replacement of members, while the House is fast.

    Imagine a world where Covid 21 is 10x Covid 19, and happens on Feb 1 of a new admin. The president has no approved nominees of the CDC (or other relevant agencies), the Senate doesn’t like the President, but the House won a wave election with him. This provision logically deals with it (or any other emergency that the Senate is being obstinate about, but won’t put themselves on record), 1.5 branches can force .5 branches to allow for a temporary measure.

  10. Well, I think we are about to find out the legality. POTUS Trump tends to follow through on what he says he will do. Should make for a fascinating legal argument.

    The politics behind this are just abysmal.

    1. Why are you saying the legality would be interesting. A textualist reading of the Constitution is pretty straightforward.

    2. “POTUS Trump tends to follow through on what he says he will do.”

      Credulous clingers are among my favorite culture war casualties.

  11. A few points.

    1. This is an odd argument to make by Trump. The Senate could just then end their “forced” recess almost instantly, and we’re back where we started.
    2. Moreover, recess appointments only lasts a limited time. There is limited benefit to doing this with judicial appointments.
    3. Trump doesn’t really need it, given the GOP majority in the Senate. We’re just dealing with a temporary issue due to some people being out of DC.

  12. 1. This is an odd argument to make by Trump. The Senate could just then end their “forced” recess almost instantly

    “Instantly”, and “almost instantly”, are not the same thing. However long it would take the Senate to end their enforced recess (and I’m hazy on the process) would be plenty long enough for Trump to sign twenty or forty or sixty recess appointments.

    and we’re back where we started

    Except for the fact that there are twenty, forty, sixty recess appointees in situ.

    2. Moreover, recess appointments only lasts a limited time. There is limited benefit to doing this with judicial appointments.

    Sure – though even with judicial appointments it would not be zero. Should Justice Thomas succumb to COVID-19, a recess appointment of, say, Rudy would do wonders for all those cases about election rules lawsuits that are sure to be coming down the pipe.

    But mostly Trump wants his people in executive branch slots. I confess I get a little hazy about what counts as a Session in “shall expire at the the End of their next Session” but it must be at least until November which is all Trump cares about for the time being.

    And I’m sure the Democrats agree with Trump that temporary appointments are still important. They’re really enjoying Grenell being Acting DNI.

    3. Trump doesn’t really need it, given the GOP majority in the Senate. We’re just dealing with a temporary issue due to some people being out of DC.

    Er, no. There may be a GOP majority in the Senate, but there certainly isn’t a Trumpist majority. Mitch does not want rampant Trumpists popping up willy nilly all over the Executive branch. He feeds Trump his executive branch appointments in very small doses. In reality he’s been playing along very happily with Schumer’s slowwalking tactics. The only appointments Mitch wants to hurry along are judges.

    Here’s a doozy from 2017 in which Mitch’s spokesman attempts to explain why there’s no recess – and so no opportunity for Trump to make recess appointments :

    The spokesman added on Friday that the Senate was holding the brief sessions because they didn’t get a deal on adjourning, not specifically to block the president from making recess appointments.

    “So to meet our constitutional requirement of meeting every few days, we’re doing pro formas. We didn’t do it to block Trump,” the aide said.

    Under Article One of the Constitution “neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days.”

    ie we’re having a few pro forma sessions, to prevent a recess, not because we want to stop Trump making recess appointments, oh Lordy no, we’re doing it to fulfil our constitututional duty to stay in session, because we haven’t been able to reach a deal on adjournment with…..the Republican controlled House of Representatives” 🙂

    1. I might perhaps add that it’s not something you’d expect Mitch to go along with, since he’s a Senate institutionalist and would hate the idea of the Senate losing its grip on appointments even slightly.

      But mostly because the practical effect would much more likely benefit the Ds than the Rs in the near term. Taking Presidency-Senate-House in that order :

      2020 results D-D-D, R-R-R, D-D-R, D-R-R, R-D-D and R-R-D don’t really matter for this diasagreeing Houses recess thing. Cos you need both (a) divided Houses and (b) a difference between the President and Senate.

      So only a R-D-R result in or D-R-D result in 2020 matter for the short term calculation.

      It’s really hard to see how Trump could get himself re-elected while the Rs lose the Senate but gain the House (R-D-R). It’s probably the least likely of the possible eight results, and by some distance.

      Whereas each House remaining in current hands, while the D beats Trump is perfectly forseeable (D-R-D.) Indeed it’s probably, if marginally, the likeliest of all eight possible results.

      So a D President elected in 2020 is way more likely to benefit from the divided Houses adjournment trick than an R President (ie Trump.) So is showing the Ds the way to go, a wise plan for Mitch ? Maybe it doesn’t make any difference – probably they’d do it anyway. But if Mitch had already done it, he’d lose any right to complain about the Ds following suit.

      1. Like the Ds would care when he complained.

    2. Er, no. There may be a GOP majority in the Senate, but there certainly isn’t a Trumpist majority.

      The impeachment vote fiasco in the senate says otherwise.

      1. David, if comments had a “like” feature, I would hit it ten times for your comment. One of the things we’ve learned while Trump has been in office is just how cheaply Republicans are willing to sell their souls. If I’d known Republican souls went that cheaply, I’d have bought a dozen as door prizes for my last dinner party.

      2. Their loyalty is more to GOP voters than to Trump. The fact that GOP voters support Trump 90% gives him proxy authority on that loyalty. But there is a difference, and if GOP voters start to abandon Trump i doubt he could count on more than 25% of the GOP House and Senates loyalty. To suggest their support of Trump during impeachment is a deep personal attachment to Trump misreads the depth and character of their support.

      3. The impeachment vote fiasco in the senate says otherwise. This is of course a testable hypothesis. When it comes to trials, it’s far from uncommon for the jury to acquit even if they absoutely loathe the accused. Their excuses may include : (a) the belief that the offense charged is not actually an offense, or (b) that the prosecuton has misbehaved egregiously, or (c) that the prosecution has failed to prove its case to the requisite standard, or (d) more than one of the above. Meanwhile if the Senate had a Trumpist majority then all of Trump’s executive branch appintments would happen in double quick time, either by squishing further the minority’s delaying tactics; or by a neatly timed recess or two. Oh wait…that’s never happened. I nthree years. In fact the Senate and HoR when both in GOP hands refused to adjourn, using the same tactics as they had used to stymie Obama.

    3. I think Mitch is taking a longer view, Trumps and Obama’s come and go, but McConnell’s Schumers and Pelosi’s are almost forever. He doesn’t want to scrap the filibuster or pro-formas because they may be inconvenient when he has a GOP president, but they are essential with a democratic president and a democratic senate.

      Reid showed how short sighted it is to scrap obstructionist rules to take advantage of momentary ascendency. Short-sighted for Senate majority/minority leaders, not so much for the voters will.

    4. 1. With a recess, it typically has to last at least “3” days before an recess appointments. That’s why you see pro-forma sessions every 3 days. That’s enough time for the Senate to reconvene.

      2. Again, limited time.

      3. I’m not sure what a “Trumpist” is.

      In regards to adjournment, this apparently escaped you, but the House is controlled by Democrats, not the Republicans It is a Constitutional requirement that both chambers agree on adjournment, but only the Senate confirms positions.

      1. By what procedure would the Senate reconvene ? Art 2 Sec 3 says : “he may adjourn them to such time as he shall think proper” If “he” sets the time at, say, 15 days hence, what allows the Senate to reconvene earlier ? In regards to adjournment, this apparently escaped you, but the House is controlled by Democrats, not the Republicans “Here’s a doozy from 2017” seems to have escaped you. It is a Constitutional requirement that both chambers agree on adjournment, but if they cannot agree, a further provision permits the President to require them to adjourn. So the structure of the combined rule is that an adjournment does not require the consent of both Houses, it requires the consent of two out of three of House, Senate and President.

  13. During the Merrick Garland affair, I said here that the obvious solution is that any nominee who hasn’t received a Senate vote within a reasonable period — say, six months — should be deemed confirmed. That way, the Senate can reject a nominee it doesn’t like, but neither it nor individual senators can obstruct just to obstruct. That would require a change in Senate rules, and it still seems to me to be the obvious solution.

    1. I think that’s a really bad idea. Not a slightly bad idea. It effectively removes the requirement for Senate consent, because the President has no incentive whatsoever to consider Senate objections.

      The whole point of the President nominates and Senate consents thing is to leave the default at NO APPOINTMENT unless the two parties agree.

      1. Sure, the president has to consider Senate objections. It just puts a time limit on when the Senate can object. They can still vote down a nominee if they don’t like him or her, they just can’t sit on a nomination to be obstructionist.

        It’s the functional equivalent of a bill becoming a law if the president doesn’t act on it in ten days. He still has the ability to veto it, he just has to do it within a set time frame.

        1. A quick google, and some counting on my fingers, reveals that in the first 20 months of his adminstration, the Senate confrmed about 500 Trump nominees to executive and judicial branch positions.

          So that’s about 25 a month, or 150 in six months.

          So all the President needs to do is nominate 500 in one go, and the Senate pipe’ll back up. 350 of them will get through the Kryckek-2 overflow pipe.

          And the Krychek-2 default rule is designed in response to a single particular cause celebre – the fact that the Republican Senate preferred the political optics of hiding behind not voting, to voting Garland down. Because make no mistake, there was no way Garland, or any other Obama nominee was going to get confirmed. Even if the Collinses of the world could have been turned, there were never going to be enough Rs breaking ranks to end a filibuster. So it was purely about political optics. We need constitutional amendments for that ?

          1. We do not need a constitutional amendment; a change in Senate rules would suffice. The Constitution says “with the advice and consent of the Senate” but that leaves the specific mechanics of how the Senate advises and consents to the Senate.

            If the President sends 500 names in one fell swoop, then the Senate can, on a voice vote, deny confirmation to all 500 in one fell swoop. Or, since my six months was not cast in stone, maybe make it a year instead. You’re basically looking for reasons for it not to work.

            And here’s the underlying rationale for my proposal: In a country that is, as I believe you referred to it in a previous post, democrat-ish, the normal rule should be that the majority gets what it wants. The Bill of Rights places limits on it, and I understand and respect the protection of minority interests, but we have gone so far in the other direction as to make a complete mockery of the concept of democratic governance. Despite being the political minority, the Republicans control just about everything, and have the ability to obstruct pretty much whatever they like. As you point out, Obama couldn’t even get a hearing on a nominee to the Supreme Court.

            I don’t think that kind of obstructionism is what the framers had in mind, and if it was, then I think they were out of their minds. When a nominee is sent to the Senate, then let’s have a damn vote. My proposal at least offers a remedy for the current dysfunction. It’s not perfect, but God knows neither is what we have now.

            1. In a country that is, as I believe you referred to it in a previous post, democrat-ish, the normal rule should be that the majority gets what it wants.

              Even stipulating the value of the democrat bit of democrat-ish, over the ish bit, does not your scheme assume that the President is more democratically valid than the Senate ?

              4 of the last 7 Presidential elections have been won with a minority of the vote – Clinton in 1992 with a mere 43%.

              I’m afraid it still seems to me that this is just some residual soreness about one particular bad bounce which cost your team in the play-offs. This does not seem to me to be a particularly sound basis for reform. The ball could easily bounce the other way on another occasion.

              After all, the vacancy only opened up because the guy with the scythe swung one way. That’s got nothing to do with democracy, it’s just luck. He could just as well have swung the other way.

              1. It’s not residual soreness. It’s growing disgust with a completely dysfunctional system.

                You seem not to get past the idea that somehow this intrudes on a Senate prerogative. It doesn’t. It says that the Senate has a certain time within which to exercise its prerogative, which is hardly a novel concept.

                1. Your soreness must be pretty sore by now, because the Senate has been declining to take up Presidential nominations pretty much since the founding. You seem not to get past the idea that somehow this intrudes on a Senate prerogative. It doesn’t. It says that the Senate has a certain time within which to exercise its prerogative, which is hardly a novel concept. But it doesn’t even do that. Your scheme has the Senate saying future Senates have a certain time within which to exercise its prerogative. Well future Senates – with either party in the majority – aren’t going to like auto-confirmation any better than Mitch. So even if your rule got adopted it would only last twenty minutes.

    2. No it wouldn’t require just a change in Senate rules, because any constitutionally members can request a roll call vote. No roll call no vote.

      But lets a assume we can just start “deeming” things, maybe the next step is just having the president deeming legislation is passed if it doesn’t get a vote in 60 days.

      We have a democracy with clear rules about what is required for a house to assent to legislation or a nominee, but lets throw it all out because there are a few results you don’t like.

      1. Nominees are different than legislation, but if you’re going to conflate the two, then we already have precedent in that bills become laws in ten days without the president’s signature if he fails to act on them.

        1. “and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.” Nominees along with legislation definitely come under the domain of any question. I really get a lot of amusement out of the “things i like are constitutional, things I don’t like are unconstitutional” school of constitutional interpretation. But there is no “deeming” allowed in the Constitution whether by rule or legislation, unless possibly you have a 4/5 + 1 majority to bypass a roll call vote on demand, and then why bother, just vote and be done with it.

          1. I’m not following your line of argument. Krychek2’s proposal, as I understand it, is to say that Senate Rules should be changed to say that any nomination that hasn’t been voted on within 6 months of receipt, is, under Senate rules consented to. “and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.” seems to refer to the right of a fifth of Senators to require that who voted Yea and who voted Nay on a question that is put must be entered in the journal. Which requires a roll call vote, or at least sme kind of vote that allows individual votes to be recorded. But it doesn’t imply that one fifth of Senators have a right to demand that any particular question be put. If it did one fifth of Senators could permanently block all Senate business by requiring votes on Senators’ preferred car models, favorite actresses, whether there are synthetic a priori truths and so on. And of course they could force a vote on any nominee. Why didn’t Chuck think of that ? So – if a question is put, then a fifth of Senators can insist on the Yeas and Nays going into the journal, and so, by implication, some method of voting whereby the individual votes can be counted. But Krychek2’s scheme involves no question being put – other than the original vote on Senate rules (to which the Yea and Nay rule would apply.) If no question is put, but the Senate rules say what Krychek2 wants them to say, then the President would go ahead with the appointment. It would then be for the courts to say “Nothwithstanding the Senate having the right to determine the rules of its proceedings, and notwithstanding Senate rules saying that the Senate has consented, we don’t think it has.” I don’t think you’d find Roberts in your corner.

            1. If there is no question put to the Senate then there is no consent.

              His proposal is errant nonsense. You can’t ignore the constitutional requirement for consent, consent can only be given by a vote on the question, and 1/5 the Senators can call for a roll call vote exposing whether there was a quorum and whether they actually had enough votes.

              1. You can’t ignore the constitutional requirement for consent,


                consent can only be given by a vote on the question,

                This seems to be assuming the conclusion. Obviously I would prefer this conclusion to be correct, but it is not obvious from the words. There are certainly examples of “consent” being given otherwise than by a formal vote on a question. After all, though there are certainly folk who would like to change the custom, consent to sexual intercourse might be given by nothing more than a smile.

                In a formal legal setting, like consenting to a nomination, one might expect a formal vote to be required for giving consent. But it’s hard to gainsay the explicit constitutional provision that each House can make its own rules. And if Senate rules say that consent is given automatically to any nomination that has not been put as a question within 6 months, what would a court pin its objection on ?

                and 1/5 the Senators can call for a roll call vote exposing whether there was a quorum and whether they actually had enough votes.

                If a question is put.

  14. Here’s my wild speculation about what’s going on – it’s a three handed game of chicken.

    Trump wants more money for the small business COVID 19 support. Mitch does too, and they want the extra money “clean” – ie with none of those nasty Democratic political strings.

    So Trump plays chicken with Mitch. If you won’t give me my executive branch appointments, I’m going to do a deal with Nancy. I’ll agree to her political strings on the COVID money. You’d hate that Mitch wouldn’t you, cos even through you could theoretically block it in the Senate, blocking a deal that me and Nancy have agreed is going to make you smell like rotten fish. So you’re gonna fold.

    So Mitch plays chicken with Nancy. Look Nancy, unless you give Trump his COVID money “clean” with none of your nasty commie strings, I’m gonna fold on executive appointments. You know that you can’t stop a recess if I agree one with the Orange One ?

    Nancy – sorry Mitch. I can do a deal with the Orange One, and you’re bluffing.

    Mitch – do you feel lucky, Nancy ?

  15. I’m confused why the President’s appointments can’t get through a Republican controlled Senate, but, if I were the Democrats, I think it would be advantageous for the President to use recess appointments for Judges so their terms expire at the end of next term (after the election) rather than as a life term.

  16. If I were the Democrats, I would rely on demographic projections — and perhaps on diminution in voter suppression and gerrymandering — and await the moment at which tiny, clinger fingers are removed from levers of American executive power.

    Then, the reckoning. Enlarged Supreme Court. Enlarged House of Representatives. Enlarged Circuit Courts of Appeal. The crushing of conservative aspirations.

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