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.

Comments

[Dan Schiavetta]

1. No responsible Chief Executive is going to make cheap threats like this, and certainly not by tweet.
2. When he was running in 2016, he said he would "order a judge to sign a bill . . . " You can't order judges to do anything, and judges don't sign bills.
3. We've never had a major party candidate with this level of ignorance about our Constitutional system. Yet he won.
4. Lesson to be learned: actually knowing stuff doesn't help. Preparing, and learning, is for losers.
5. Josh treats this tweet like an informed, valid position.

[SRG2]

Ignorance is the new knowledge

[Dan Schiavetta]

Sometimes I wish I was a Republican. I wouldn’t have to know anything, I wouldn’t have to learn anything, I wouldn’t have to ever find out where the other side is coming from, I could just sit back, suck my thumb, go to sites that tell me what I want to hear, and engage in my juvenile prejudices, preconceived notions, without ever exposing myself to having them challenged, not ever engage in (horrors!) self-awareness or introspection, or read articles about how we have to do things differently, and if someone argues with me, I can come back with “I know you are, but what am I?” and still win the argument, and still win elections . . .

[The Margrave of Azilia]

"I wouldn’t have to ever find out where the other side is coming from"

Can you describe a voter's possible motives for voting against Harris, in a way which passes the ideological Turing test?

[Dan Schiavetta]

The only reasons I can think of are 1) being massively ill-informed or 2) insecure masculinity, racism, misogyny. Can you think of any?

[Swede425]

LOL!
You are so precious.
Never change.

[Dan Schiavetta]

not responsive

[Brett Bellmore]

Well, neither was your answer, pretty obviously.

The Margrave is right: You aren't making any effort at all to find out where the other side is coming from, so why are you complaining about the right being guilty of that?

[Dan Schiavetta]

Refer to Ilya’s and Post’s recent posts on the pervasiveness of right wing disinformation.

Also check out Tomasky’s recent article in The New Republic (no paywall).

[Brett Bellmore]

I am utterly unimpressed by Ilya’s complaints about right-wing disinformation.

It’s not that it isn’t a real problem, so much as I’m sick and tired of the pretense that it isn’t a problem of the left, too.

[David Nieporent]

Can you describe a voter’s possible motives for voting against Harris, in a way which passes the ideological Turing test?

Voting against Harris? Sure. Voting for Trump? No.

[Hugh]

I look forward to for more years of Professor Blackman continuing to make excuses for Donald Trump and looking for ways, legitimate or not, to outrage mainstream law academia. His fevered wet dream about Clarence Thomas being appointed attorney general in his last post is an example of what we can expect.

[Lee Moore]

I'm puzzled as to what you think you know that Trump doesn't. His tweet seems pretty clear to me and constitutionally correct.

1. He's saying that he wants anyone running for Majority Leader in the new Senate, ie from Jan 2025 to make it clear that he (or she) is willing to do an end run round Dem blocking of appoitments by allowing Trump to make Recess Appointments. This is a straightfoward intervention in the GOP Majority Leadership race. Nothing dictatorial about the leader of the GOP doing that.

2. Trump correctly points out that last time, the Dems successfully slow walked lots of his appoinments, and one - I forget which - really did take 2 years. Trump does not mention that Mitch could have hurried things along a bit, but didn't. Trump is merely saying he's not going to put up with that crap this time round. Timely voting on advice or consent, or it's recess time. Perfectly reasonable. Not dictatorial at all - he can't do it without Congressional consent. He's just making it clear that a Senate Majority Leader who is not willing to go Recess if necessary, is going to be making himself an enemy.

3. The last bit is about the GOP using whatever Senate rules based minority powers it has to block lame duck Dem judges - ie the mirror to Dem blocking of his appointments. The GOP, since 2021, has done nothing like the Dems minority blocking in 2017-2021, and it's time it did. In Trump's opinion.

4. Of course the two issues are linked. If the GOP uses its minority blocking powers during the lame duck period, and that provokes the Dems into going Recess, that makes it easy for the GOP to do that from 2025.

I can't see what the clucking is about.

[Longtobefree]

Did you miss the part about "Washington Post"?

[Stephen Lathrop]

Lee Moore — The problem is that read in historical context the recess appointments language did not mean what you think it means as you read it in today’s context.

Your context is partisan warfare conducted without quarter, for total victory, forever, by parties without institutional scruples. The founders’ context was institutional checks and balances conducted by parties jealous of their own branches’ powers, and respectful of other branches’ prerogatives.

Your context is reliable one-day cross-continental travel. The founders’ context made routine a 3-week journey from the more distant states, with potentially lengthy extensions due to weather, warfare, or other happenstance.

Your context is high-tech medical care, in a world made all-but-safe from deadly mass contagion. The founders’ context was lengthy evacuations of major cities under threat of small-pox or other epidemic horrors.

Your context is a class of professional politicians without other occupations to distract them. The founders’ context included a large class of agriculturally active resource managers, called upon from time-to-time to tend to seasonal exigencies which could not reasonably be postponed.

In short, the founders’ context made the notion of happenstance lengthy delays in legislative activity a circumstance necessary to be provided for, and planned around. Your context would license deliberate infliction of delays, by order of one branch in political control of another, for the purpose to circumvent and defeat the separation of powers.

The founders, evaluating that in their own context, would have had no difficulty recognizing that as a tyrannical abuse, and denouncing it.

Textualism—applied to antique texts without reliance on historical study—is always an unwise practice, however commonplace. Would-be textualists must rely exclusively on context contemporaneous with the creation of the text in question. It is likewise necessary that they exclude from consideration any inferences drawn from present-minded context.

Alas, Blackman knows nothing of that, and relies exclusively on present-minded context for his “analysis.”

As for Trump, famous for his distaste to read at all, any supposition he relied on accurate textual insight remains preposterous. Trump’s intention is unmistakably tyrannical.

[Lee Moore]

The trouble is - all this was litigated recently and so we know what the Supreme Court thinks about the Recess Appointment power.

Trump can hardly be described as legally ignorant for knowing what the precedent is.

[Thrax]

The GOP, since 2021, has done nothing like the Dems minority blocking in 2017-2021

Exactly right. It was much worse.

https://www.nbcnews.com/politics/congress/sen-tommy-tuberville-drops-hold-hundreds-military-nominees-rcna128138

[Rossami]

Cheap threats like "I've got a pen and I've got a phone"? Yeah, no responsible Chief Executive has ever used the bully pulpit before.

The rest of your hyperbole is as historically ignorant. Get over yourself.

[Noscitur a sociis]

If people are confused about what the fuck Trump was talking about, I don’t think the fault lies with them.

[SimonP]

I wish I could say I look forward to your continuing bad-faith, specious reasoning, Josh.

Yes, the Senate likely will have the votes to confirm a number of Trump's picks, without too much delay. So one wonders why Trump wants to move even faster. Could it be, perhaps, that he wants to put people in positions, for potentially two years, that would not be able to withstand even ordinary scrutiny in Senate hearings that are controlled by allies?

Yes, the Senate cannot recess without the cooperation of the House. But why that's somehow less likely than Senate cooperation is left unexplained.

And yes, intentionally coordinating with the White House so as to get around the "advice and consent" role for the Senate is a dictatorial move. The Constitution separated these powers for a reason, Josh. If Congress is majority-controlled by the same party as the president but still refuses to exercise even a minimum of oversight, so as to effectively rubber-stamp Trump's Cabinet, then consider what else follows: what happens when he picks total lunatics and stooges to head Defense and Justice? When those unvetted picks then turn around and attack his political opponents and American citizens?

Any constitutional law professor should be concerned about this behavior. Tearing their hair out over the rise of fascism? - maybe not yet. But to run to your keyboard so as to get an instant rebuttal out on the internet to explain why it's no big deal is disingenuous in the extreme.

You will follow these goosesteppers as far as they choose to go. You're not a serious person, Josh.

[Dan Schiavetta]

The modern, goose-stepping Republican Party, has broken with long Senate tradition.

In 1961 the new Vice President, Lyndon Johnson, who for years as Senator had run the Senate through intimidation, friendly persuasion or cajoling, asked to be included with the Senate Democratic Caucus. After all, the V.P. is the president of the Senate. The Senate Democrats refused! This was not an aberration in those years. It is still true of Democrats. But as you note, today’s Republican Party is a personality cult. Its Senate Caucus has no identity of its own. If Trump says, “Jump!”, they reply, “How high?”

[Lee Moore]

Could it be, perhaps, that he wants to put people in positions, for potentially two years, that would not be able to withstand even ordinary scrutiny in Senate hearings that are controlled by allies?

Obviously it's that he wants to make it pointless for the Dems to slow walk his appointments. If they try that, he wants the GOP majority to speed things up.

Personnel is policy. He doesn't want the Democrat civil servce running the Executive Branch for the first two years of his term, while his appointees get apooooiiinntteeeed veeeerrryyy slooooowllly.

[Martinned2]

I guess we're back to four years of "if it's (arguably) legal, it's fine".

[Bored Lawyer]

Or we can always do what they do in Europe, and let the Islamo-Nazis run rampant, and look the other way, and then issue meaningless platitudes about failing the Jews in WWII.
Beat up any Jews today, Martinned?

[Martinned2]

let the Islamo-Nazis run rampant

If you're trying not to sound like an ignorant racist, you're not doing a very good job of it. But I guess Trump winning the elections means that you no longer have to hide your ignorance or your racist views...

[Mr. Bumble]

Mohammedans are not a race.

[Martinned2]

Islam is a race if you're ignorant enough, as your previous comment illustrates.

[Bored Lawyer]

Islam is a religion, and arguably a political philosophy. It claims not to be racist, and people of various races and ethnicities follow it.

So your calling me "racist" just shows your ignorance, likely willful.

[Bored Lawyer]

Let's see, Islamists perpetrated a pogrom. Motivated in large part by their religious beliefs. Nothing racist there.

But keep denying. Sooner or later, the Jews will all move out of the Netherlands, and then the rest of you will be their targets. Have fun with that.

[Bored Lawyer]

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.

That's where the fix should be. Take away the minority party's ability to use "procedural blocks." No reason a nominee to the federal bench cannot be acted upon within 6 months of nomination.

[Voize of Reazon]

No reason a nominee to the federal bench cannot be acted upon within 6 months of nomination.

If that had been the rule Merrick Garland would be an Associate Justice.

[Lee Moore]

Nah. Bored Lawyer proposed eliminating the Senate minority's ability to impose procedural blocks on nominations.

In Garland's case, the Senate majority deliberately imposed a procedural block of its own, to avoid having to vote the guy down. (If he came up now, of course, they'd be less embarrassed, since his stint as AG has demonstrated that he is just a hack, far from the Honest Merrick that was advertised.) Thus the Senate DID act - by deliberately deciding to avoid a decision. Entirely different sport.

I should say that I'm not on board with Bored Lawyer's proposed nixing of Senate minority procedural powers. We already have one House of Representatives, and it's not a pretty sight.

Instead, if the rules as they are give the Senate minority a way to delay appointments for longer than the majority thinks reasonable, but the rules as they are also allow the President, with the Senate's consent, to walk round the Senate minority's carefully constructed obstacle course, then I say play by those rules.

You might say "it's jolly bad form" for the Senate minority to hold up executive branch appointments using procedural dodges, but if they feel strongly that Trump and Darth Vader are one and the same, and they can legally block him, I say "politics ain't beanbag."

And likewise all this clucking about the Senate majority - within the rules - legally dodging the minority's legal dodges is pretty silly.

[Voize of Reazon]

And likewise all this clucking about the Senate majority – within the rules – legally dodging the minority’s legal dodges is pretty silly.

Was it silly to complain 11 years ago when Harry Reid used the nuclear option to legally dodge the Republican minority's legal dodges?

The Constitution relies a lot on the good faith and integrity of those it entrusts with power. It is not a good fit for people whose highest ethical standard is "whatever I can get away with".

[Lee Moore]

The distinction I would make is this. There isn’t any doubt, post Noel Canning, that the constitution permits Recess Appointments, nor that the Senate can, constitutionally, engineer either the presence or absence of a recess.

Harry’s nuclear option was different in that there wasn’t any doubt that 60 votes were required under Senate rules to advance judicial and executive branch nominations, if the minority filibustered. Instead of changing the Senate rules, using the Senate rules, the Dems used a simple majority to overturn the Senate Parliamentarian’s correct ruling that 60 votes were required. That was why it was called the “nuclear option” – the Senate majority by dishonestly pretending that the Parliamentarian was wrong, when he was right, obviously right and nobody advanced any argument as to why he might be wrong, established that in practice there were no Senate rules. They had walked over them. Which being the majority, they had the power to do.

By way of analogy. Article 1 says : “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” Suppose there is a controversy as to whether the newly elected Senator McGillicuddy of New Jersey was, when elected, an inhabitant of New Jersey. The Senate is entitled to decide the question. Whether they decide the question based on (a) considerations as to where he lived or (b) whether the majority needs his vote in the Senate; that is within the power of the Senate majority.

But we as observers can certainly take different views of the propriety of that exercise of power in the two cases. In case (a), the Senate majority is indeed judging the qualifications of its member. It is following the rules. In case (b) the Senate is not judging his qualifications. It is judging his political value. The Senate is not following the rules, it is flouting them. It’s just that we can’t do a dang thing about it. Until the next election.

Organizing a recess in accordance with the rules is an (a). Harry did a (b), and thereby set the precedent that contrary to appearances, there are in fact no longer any Senate rules.

The Constitution relies a lot on the good faith and integrity of those it entrusts with power. It is not a good fit for people whose highest ethical standard is “whatever I can get away with”.

You are aware of the factual background to Noel Canning, right ?

[Voize of Reazon]

You seem to assume I would defend Reid and Obama.

The ability to appeal a ruling of the Chair is a Senate rule.
Abusing it to get around another Senate rule is wrong.

The ability to make recess appointments is part of the Constitution.
Abusing it to get around another part of the Constitution is wrong.

[nhwku]

Scalia set the context of his opinion early in the concurrence. The Constitution prevents "the President’s recess-appointment power from nullifying the Senate’s role in the appointment process...." How can you not see Trump's intent here as a circumvention of the Senate review process?

[nhwku]

For some reason, I couldn't edit the above comment. So here's an addition. Later Scalia further emphasizes that "[t]he Recess Appointments Clause therefore is, or rather, should be, an anachronism—“essentially an historic relic, something whose original purpose has disappeared.” Id., at 19 (Kagan, J.). The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process."

[Brett Bellmore]

I would be hard put to dispute that assessment.

[Martinned2]

Judging by the OP, I think you're about to find out that it's actually really easy to dispute that assessment.

[Brett Bellmore]

Yeah, but it won't be ME disputing it.

[JoeFromtheBronx]

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

Some by the writer of this quote.

When is this guy going to be offered the Trump judicial slot he clearly so desperately wants?

[Bored Lawyer]

Who is right on this question? Is what Trump is proposing barred by the Constitution or any law?

Short answer: No.

[Voize of Reazon]

The WaPo article said it was authoritarian and unprecedented.
Your "this question" of constitutionality is a Blackman-constructed strawman.
I expect soon to see him using the same logic to defend self pardons.

[David Nieporent]

The real scary question is: how bad a set of appointments does Trump plan on making that he doesn't think he can get them confirmed even with a 53-47 margin in the Senate?

[Steven Caufield]

I suppose we have to look forward to four years of your offensive partisanship and willful ignorance. A President-elect demanding that the Senate go into recess to allow him to sidestep one of the most basic checks on executive power clearly and unequivocally established in the Constitution is not just some little amusing item. It's a serious violation of the Constitution. It's shocking and disgusting that you are allowed to teach at a law school in the United States.

[Lee Moore]

What provision of the constitution do you imagine that making such a demand would violate ?

[Lee Moore]

Looks like Trump's comment has had the desired effect :

https://www.msn.com/en-us/news/politics/gop-senate-majority-leader-hopefuls-scramble-to-address-trump-demands-ahead-of-inauguration/ar-AA1tSZ2q

[Belisarius]

Josh, setting aside precedent, at a minimum Alito, Roberts, CJ, and Thomas all agree that recess appointments are only appropriate for vacancies that arise during the recess. While it's possible Thune / a compliant senate could time recesses to coincide with vacancies, it seems like democrats could easily defeat this by simply resigning now or any time while the senate is still in session.