The Supreme Court Could Easily Strike Down Trump Recess Appointments
The Supreme Court could easily strike down President-elect Donald Trump 's cabinet picks if he tries to kneecap the Senate confirmation process with recess appointments.
Knowing that some of his most important nominees—think Matt Gaetz and Pete Hegseth —likely lack the votes to be confirmed in the Senate, Trump is considering sidestepping the Constitution.
When the Senate isn't in session the Constitution allows the president to make "recess appointments" to ensure the government can continue functioning. So, Trump plans to engineer a recess. If the Senate agrees, Trump is all set. But if it doesn't, he may have another trick up his sleeve.
When the House and Senate can't agree on a time to adjourn Congress , the president may adjourn them to a date he picks . So, to hobble the Senate, Trump could ask the House to propose an immediate adjournment. If the Senate disagrees, Trump may adjourn them both and appoint whomever he pleases.
No matter which of the two approaches Trump tries, the Supreme Court likely won't stand for it. It has already signaled its dislike for recess appointments. In 2014, the Court unanimously invalidated recess appointments made by President Barack Obama even though they were made during an actual—very short— recess of the Senate. The Court said the recess was too short to justify recess appointments and invalidated them. The one-vote majority led by Justice Stephen Breyer should have taken an even more unfavorable view. It acknowledged that a crafty president could make a recess appointment last up to two years—a view Trump relies on.
But Trump shouldn't be so sure. Today, the views expressed in the Obama case by four conservative justices may matter more. They wrote separately to assail the use of recess appointments as a means of circumventing Senate confirmation.
Justice Antonin Scalia , writing for Chief Justice John Roberts , Justice Clarence Thomas and Justice Samuel Alito , attacked the expansive use of recess appointments as an unconstitutional threat to the core checks and balances preserving our democracy. The four insisted that recess appointments should last only until the recess is over—days not years—and that only vacancies that occur during a recess may be filled. In short, they believed that recess appointments are only valid when the Senate is out of town and end when the Senate returns—two things totally at odds with Trump's scheme.
They also said it doesn't matter if Congress supports the scheme—it can't be done. The justices said that the Senate confirmation process is an immovable obstacle to "despotism." They asserted that a strict limit on recess appointments was needed to "prevent the president's recess-appointment power from nullifying the Senate's role in the appointment process." They declared that "abdication of responsibility is not part of the constitutional design." And they were right.
Critically, three of these justices—Roberts, Alito, and Thomas—are now the senior members of a conservative majority of six members on the court today. They could easily assemble the votes to distinguish or overrule the Obama-era decision on the basis of the difference between Obama's episodic use of the tactic and Trump's scheme to make it systematic. Liberal justices would likely join them.
Here's how a case might reach them. The Obama appointment case was brought by a disgruntled Pepsi distributor who challenged a labor board sanction against him. Because the board members who voted for it weren't validly appointed, the sanction was invalid too. Trump could face similar rulings. If he installs Matt Gaetz at the Justice Department, and Gaetz starts firing staff, they could sue to invalidate their discharges. The same would be true for Defense Department employees let go if Pete Hegseth is installed as their chief. Others injured by their actions inside and outside of government could do the same.
It could create a real mess. There would be an enormous cost if the high court ultimately invalidates Trump's appointments—especially if it involves undoing and compensating for years of invalid actions taken by Trump officials. Given the risk of an adverse Supreme Court ruling, Trump and his allies in Congress are far better off dropping the recess appointment scheme and taking their chances with the constitutionally mandated Senate confirmation process.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It .
The views expressed in this are the writer's own.
