The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Thomas Berry (Cato Institute) on Trump's Recess Appointment Plan
Berry explains why the plan is flawed on legal and other grounds.
This is a guest post is by my Cato Institute colleague Thomas Berry. What follows is written by him (Berry), not me (Ilya Somin):
President-elect Trump has demanded on X that Senate Republican leadership "must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner." In this post I'll explain the consequences of allowing recess appointments, why the Senate has not done so for over a decade, and why it would be unwise to allow recess appointments now.
First, here are the basics on congressional timelines. These days, each 2-year Congress comprises two 1-year sessions, running from January 3rd of one year to January 3rd of the next. But in the eighteenth and nineteenth centuries, sessions were much shorter than a year, and they had months-long gaps in between them when members of Congress traveled home.
The Constitution's Recess Appointments Clause was written to accommodate the delays that could occur in Senate confirmation back when travel between the Senate and the rest of the country took much longer. As Alexander Hamilton wrote in Federalist 67, the clause was adopted "as it would have been improper to oblige [the Senate] to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay."
The 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." Article II, section 2, clause 3. For decades, two questions were in doubt concerning this clause. What's "the Recess," and which vacancies "happen during the Recess"? The Supreme Court finally answered both questions in the 2014 case NLRB v. Noel Canning.
In Noel Canning, the Supreme Court held that any Senate adjournment of 10 days or more is "the Recess" and that vacancies which originally opened up before such an adjournment are still considered to have "happened" during that adjournment so long as they remain vacant during the adjournment. In my view, the Supreme Court got both of these questions wrong. There's convincing scholarship by Professor Michael Rappaport that "the Recess" meant only the one gap between Senate sessions and that only vacancies that arose during that gap were eligible to be filled by recess appointment. Justice Scalia argued for this position in a concurrence in the judgment, but this view only received four votes on the Noel Canning Court.
Whether it was rightly decided or not, Noel Canning is the law of the land, and it gives the Senate a seemingly easy tool to aid a President of the same party. If the Senate simply adjourns for 10 days, a sitting President could fill every single vacancy in the executive branch and judiciary unilaterally. (From time to time, some people have questioned whether recess appointments may be used to temporarily fill judicial seats, given that there is some tension between a time-limited recess appointment and the Constitution's command that federal judges "shall hold their Offices during good Behaviour." Nonetheless, judicial recess appointments have been made throughout the country's history.)
All recess appointments take immediate effect without Senate consent, and they last until the end of the next session of the Senate. So any recess appointments made in 2025 would last until January 3rd, 2027.
The Senate has not allowed any recess appointments in the decade since Noel Canning was decided, not even at times when the Senate majority and President were of the same party. Why not? One wrinkle is that under the Constitution, neither house may "adjourn for more than three days" without the consent of the other. Article I, section 5, clause 4. So it is only possible for the Senate to adjourn long enough to enable recess appointments when it has the consent of the House. But why hasn't it even happened when the Senate, House, and presidency have all been controlled by the same party?
One answer is that triggering recess appointments is an "all-or-nothing" move. The Senate can't give the President authority to fill just some offices. Thanks to Noel Canning's holding that vacancies arising before an adjournment are eligible for recess appointments, every vacancy across the government could be filled at once, no matter how long ago the vacancy arose. So a senator who might be comfortable with, say, a recess appointment of Marco Rubio but not a recess appointment of Matt Gaetz or RFK Jr. would have no way to limit President Trump to just the former but not the latter. Even when the Senate and President are of the same party, that's a lot of leverage for the Senate to give up. Vetting and voting on nominees is one of the most important Senate prerogatives. Thus far, Senate leadership has never been willing to abdicate that role for two years.
Additionally, triggering recess appointments isn't necessary to ensure the executive branch remains fully staffed. There's a statute for exactly that purpose: The Federal Vacancies Reform Act. This law allows the President to fill all vacant offices with acting officers on day 1. I've written about abuses of the Vacancies Act, but it has an important and legitimate purpose. It allows the government to function while permanent nominees are considered by the Senate. Although acting officers at the beginning of an administration have a 300-day time limit, the law generously tolls the time limit on acting service while the Senate considers a nomination. So effectively, the President just needs to make a nomination within 300 days, and then the ball is in the Senate's court.
Senators know that the President has the Vacancies Act at his disposal. The Act allows for positions to be filled immediately (just like recess appointments), so it is simply not the case that recess appointments are necessary to keep the government running. But several limitations in the Vacancies Act incentivize the President to make permanent nominations and to get them confirmed, and these limitations are why a President would naturally prefer recess appointments.
First, the Vacancies Act places limits on who may serve as an acting officer, which the Recess Appointments Clause does not. Unless the President wants to let the deputy to a position take over as that position's acting officer, he is limited to choosing another Senate-confirmed officer or someone who has served in the highest tier of the federal civil service in that department for at least 90 days. Since nearly all Senate-confirmed officers resign when the White House changes hands, Presidents at the start of an administration are typically limited to the latter category (most of whom are career, nonpartisan civil servants). So a recess appointment would allow the President to immediately fill an office with a more ideologically aligned appointee.
Second, the Vacancies Act generally forbids serving simultaneously as the nominee for a position and as the acting officer in that same position. The Supreme Court clarified in the 2017 case NLRB v. SW General that this prohibition applies to the vast majority of acting officers. The only exception is for acting officers who also happen to be serving as the deputy to the vacant position, and who have either been confirmed by the Senate to that deputy position or who have served in that deputy position for at least 90 days. (This is why Julie Su, the Senate-confirmed Deputy Secretary of Labor, could serve as the Acting Secretary of Labor while simultaneously being the nominee for permanent Secretary of Labor). This exception is unlikely to apply to anyone Trump wants to nominate (since all current deputies were appointed by Biden), so recess appointments would be the only way to immediately install the same person that he wants to nominate for the permanent job.
Finally, as noted, the Vacancies Act requires a permanent nomination be made within a certain time limit. Recess appointments come with no such requirement, so a President could make a recess appointment and fill a slot with his preferred choice for nearly two years without even making a permanent nomination.
Ever since Noel Canning, the Senate has held a pro forma session every three days like clockwork to ensure that Presidents could not make recess appointments, no matter which party was in power. The Senate as an institution has little to gain from breaking this practice, and much to lose. That is why I hope (and believe) that the Senate will not voluntarily write the President a blank check to fill all offices across the government without any Senate scrutiny and approval.
But there is one more wrinkle. In 2020, then-President Trump threatened to employ (but ultimately did not use) an obscure constitutional clause: "in Case of Disagreement between [both houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper." Article II, section 3. As far as I am aware, this clause has never been invoked by a President, so it is highly uncertain how it would operate in practice. (Four years ago, Hans von Spakovsky and John Malcolm also wrote that they believed "this provision never has been invoked.") Both the majority and concurring opinions in Noel Canning briefly mentioned this clause as a potential tool for the President to create a recess, but neither spelled out how this would be achieved (and since this clause was not at issue in the case, these discussions should be considered dicta).
One interpretation (which may be favored by President-elect Trump) is that this clause can be invoked whenever one house adopts a joint resolution to adjourn both houses and the other house does not agree to that joint resolution. (Ed Whelan writes that this is apparently the interpretation the administration would urge if it attempted this strategy).
But there is another, much narrower, interpretation that presents itself when this clause is considered in its full context. (I am not aware of any other arguments that have been made along these lines concerning this clause, but I have not done all the research necessary to be sure that it has not already been presented elsewhere.) The full text of Article II, section 3 is as follows ("He" refers to the President throughout):
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; 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; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
This entire clause is one long sentence, but it is divided by semicolons into seemingly discrete (and connected) subclauses. If we read each subclause between semicolons as a single idea, we get this: "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." Read this way, the President's power to adjourn both houses applies only when he has already used his extraordinary power to convene both houses. Under this interpretation, this power is only relevant if there is a disagreement about when to end (or when to bring back) such a special convening.
If the Senate is unwilling to adjourn for 10 days but President-elect Trump attempts to use this clause, we will be in uncharted waters. We would then almost certainly see litigation over the meaning of the "Time of Adjournment" clause for the very first time.
Thomas Berry is the director of the Cato Institute's Robert A. Levy Center for Constitutional Studies and Editor in Chief of the Cato Supreme Court Review.
