Holiday nominations could put Trump at odds with conservatives on the Supreme Court
WASHINGTON– Republicans will control the White House and both houses of Congress in January. But That of President-elect Donald Trump intention to apply loyalists Filling key Cabinet positions has set up a potential showdown with the Senate, which has a constitutional responsibility to “give advice and consent” on presidential nominees.
Trump and his Republican allies plan to bypass the Senate and use temporary recreation appointmentwhich does not last more than two years.
Invoking this authority could result in a battle that ends up before the Supreme Court. Trump may also have to assert another power, never before used, to force the Senate to suspend its work, if he does not agree to such a suspension.
In its 234 years of existence, the Supreme Court has only decided a case involving playdates. In 2014, judges unanimously ruled that Democratic President Barack Obama’s appointments to the National Labor Relations Board were illegal.
But they strongly disagreed on the scope of the decision. Five justices upheld a limited ruling that the Senate was not actually in recess when Obama acted and, in any event, a break had to be at least 10 days before the president could act on his own chief.
Justice Antonin Scalia, writing for the other four justices, reportedly held that the only constitutionally recognized vacations occur between annual sessions of Congress, not breaks taken during a session. That would have excluded nominations that Trump might consider after the new Congress begins in January and is sworn in.
Only two justices, Elena Kagan and Sonia Sotomayor, remain from the five-judge bloc that took a position preserving the president’s power to make appointments during congressional recess. Three others, John Roberts, Clarence Thomas and Samuel Alito, joined Scalia’s view that would have made it virtually impossible for any future president to make recess appointments.
The rest of the Court has become more conservative since then, following Trump’s three appointments to the high court during his first term. Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have no record on this issue, which rarely arises in court. Neither does Judge Ketanji Brown Jackson, appointed in 2022 by Democratic President Joe Biden.
A more conservative Supreme Court might express itself differently today, although that is by no means certain. Once the court rules on a case, the decision is considered a precedent that is not set aside lightly. So even some justices who initially disagree with a decision will join them in subsequent cases on a similar topic.
Scalia, an icon of the right, applied his originalist approach to the Constitution to conclude that there was little doubt about what the framers were trying to do.
The whole point of the constitutional provision for recess appointments, adopted in 1787 during the horse-and-cart era, was that the Senate could not be convened quickly to fill critical vacancies, he wrote.
Reading aloud a summary of his opinion in the courtroom on June 26, 2014, Scalia said the power to make appointments for suspensions “is an anachronism.”
The Senate can still be convened at short notice to consider a president’s nominations, he said.
“The only remaining practical use of the appointment power during recess periods is the ignoble possibility of allowing presidents to circumvent the Senate’s role in the appointment process, which is precisely what happened here,” he said. Scalia said.
This is unlikely to happen quickly. Only a person who was affected by an action taken by an official who received a suspension appointment would have the legal right, or standing, to file a lawsuit. In the case of the NLRB, Obama made his recess appointments in January 2012.
The board then ruled against Noel Canning, a soft drink bottling company in Yakima, Washington, in a dispute over contract negotiations with a local Teamsters union. The company filed a lawsuit, claiming that the NLRB’s decision against it was invalid because the board members were not properly appointed and the board did not have enough members to do business without poorly appointed officials.
The Supreme Court’s final decision came nearly two and a half years later.
Among the most prominent figures who were first nominated during the recess and then confirmed by the Senate are Chief Justice Earl Warren, Judge William Brennan and Federal Reserve Chairman Alan Greenspan. Among those who left office after failing to win a Senate vote was John Bolton, who was appointed U.N. ambassador during the recess under Republican President George W. Bush.
A separate new legal problem could arise if Trump invokes a constitutional provision that his allies say would allow him to force the Senate to adjourn, even if he doesn’t want to, and allow him to make appointments during recess .
Article II, Section 3 of the Constitution includes a clause on congressional adjournments that has never been invoked. Trump’s allies interpret it as giving the chief executive the power to intervene when the House and Senate cannot agree on when to adjourn. The provision states that “in case of disagreement between them, as to the time of adjournment, he may adjourn them to such time as he thinks fit.”
But some scholars, particularly conservative ones, say the House does not have the power to force the Senate to adjourn, and vice versa. Congressional adjournments are spelled out in Article I, which requires one house to agree when the other wishes to take a recess of more than three days. According to this view, the president could only intervene when one chamber opposes the other’s plan to adjourn.
