Congress

Ilya Somin | 11.15.2024 12:05 AM

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........

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