Americans are hearing more about recess appointments as President-elect Donald Trump announces his new administration's picks for top government positions. Therefore, understanding when and how the Constitution gives the president the power to make recess appointments is key to understanding how the next president plans to implement recess appointments. It will be. It is a bold policy that moves America in a new direction and overhauls a deeply dysfunctional government.
Normally, under the Constitution's Appointments Clause, senior positions in the federal government are held by officials appointed by the president and confirmed by the Senate. Congress creates federal offices by passing laws and designates whether each office requires Senate confirmation. These high-ranking bureaucrats are called “chief officers'' in the constitution, and of the approximately 4,100 political appointees in the executive branch, 1,200 hold such senior positions. Lower-level positions are “lower officials'' that do not require the Senate.
However, the framers who drafted the Constitution foresaw that the Senate would often be out of session. Their solution was that the Adjournment Appointments Clause in Article II, Section 2, Section 3 of the Constitution gives the president the power to assume high-level positions without Senate confirmation under certain circumstances.
These scheduled recesses will continue through the current annual session of Congress and the next session. So, for example, a recess appointment made sometime in 2025 would continue until Congress ends its 2026 session sometime in December 2026. In other words, a recess appointment could last almost two years, which is the equivalent of half a presidential term.
The recess appointments are in the news as President Trump considers options for increasing the staffing of his administration, including the possibility of recess appointments. This strategy is a predictable result of Democratic obstruction in recent years.
With a few exceptions, Senate confirmation was standard practice from the adoption of the Constitution in 1789 until Justice Antonin Scalia was confirmed to the Supreme Court by a 98-0 vote in 1986. Ta. Everyone knew that Scalia was a conservative who had served first as a law professor and later as a federal appellate judge. However, because Ronald Reagan had been elected as a conservative Republican, all Senate Democrats recognized Scalia's qualifications and voted to confirm him to a lifetime seat on the Supreme Court. He served for just under 30 years.
However, Democrats won a majority in the Senate in the 1986 midterm elections, and in 1987 rejected Robert Bork as a Supreme Court nominee, even though Bork was equally qualified as Scalia. did. Since then, judicial confirmations have continued to be broken, with Justice Clarence Thomas narrowly confirmed 52-48 and all three Supreme Court Justices Neil Gorsuch and Brett Kavanaugh selected by President Trump. He tormented President Bush for 41 years until his term. and Amy Coney Barrett were confirmed with similar evidence.
Republicans tried to rectify the situation during the Clinton era. Liberal hero Ruth Bader Ginsburg, despite her long career as the ACLU's top lawyer and law professor, was confirmed 96-3 by the Supreme Court in 1993 and later served as a major liberal appellate judge in federal court. served as a government official. And the following year, liberal Justice Stephen Breyer was confirmed 89-9.
However, things worsened when Republicans took back the White House in 2000. Senate Democrats extended obstruction of justice to federal appeals courts, and, relevantly, Democrats systematically sought to block or delay nominations of key officials. Undoubtedly qualified Republican candidates have lagged or scuttled.
Extending this obstruction to the executive branch creates new challenges as it impedes government functions. The presidential term is four years. A good rule of thumb is that political appointees are appointed for 18 months or 2 years. Until recently, therefore, the conventional wisdom was that the president had the right to hold senior office unless he was clearly unqualified, and the major political parties acted accordingly.
When a president wins the support of the American people to claim the presidency, he wins the right to have very wide latitude in choosing the people who will support him in fulfilling the promises he made to voters. It's part of his mission.
The 43 Bush nominees endured that treatment for eight years, so when Barack Obama took the White House in 2008, Republicans returned the favor to some degree. This is where adjournment appointments come into play.
Article 1, Section 5, Section 4 of the Constitution stipulates that neither parliament may “adjourn for more than three days” without the consent of the other house. So Senate Republicans adopted an Obama-era plan to give Democrats a taste of their own medicine. The idea was that every three days, a Republican senator would take the chair, givel the Senate into session, go through some formalities, and then adjourn for the next one. 3 days. These “pro forma” sessions blocked my break time schedule.
As expected, Obama had other plans. In 2012, he had the Justice Department's Office of Legal Counsel (OLC) issue a legal memorandum that legally allowed the president to adjourn the Senate if there were too few senators to conduct business. He challenged Senate Republicans by having the memorandum issued. (The OLC is essentially the executive branch-wide Office of General Counsel, which includes providing advice to the President on behalf of the Attorney General.)
OLC's claims were quickly deemed by many to be overreaching. The logical consequence of the OLC's opinion is that most nights, the president can schedule a break just before bedtime, since no senators have business in the chamber by 8 p.m. most days. That would be unreasonable.
Nevertheless, Obama used his newly acquired authority to make several recess appointments, including to the National Labor Relations Board (NLRB), which at the time had too many vacancies to serve. completely lacked a quorum for the meeting.
Noel Canning, a company stymied by the newly reinstated NLRB, immediately filed a lawsuit alleging that Obama's recess appointments to the NLRB were unconstitutional.
The Supreme Court is NLRB v. Noel Canning They agreed 9-0 that the Adjournment Appointments Clause does not give President Obama the power to make these appointments, and were split on what exactly that constitutional provision allows.
Justice Stephen Breyer wrote the majority opinion for the five justices. Examining various historical practices dating back to 1789, the majority found that a three-day temporary session was too short for recess appointments, but that the president could make recess appointments whenever the Senate adjourned for at least 10 days. He expressed the opinion that it could be done.
The court's opinion also contains warnings that are of no use to anyone. Specifically, the majority added that an adjournment period of more than three days but less than 10 days is “probably” too short to open the door for a scheduled adjournment, but what circumstances would overcome that presumption to prevent an adjournment period from ending? He did not explain whether it could be established. The president could make appointments during that period.
But the practical lessons are clear. If the president wants to give the president a clear alternative to candidates who have difficulty gaining approval, he should adjourn for at least 10 days. The president will take care of the rest.
As long as there are at least 51 senators willing to adjourn for at least 10 days, or 50 senators plus the vice president as a tiebreaker, the president may make recess appointments for approximately the same length of time as regular political appointments. I can do it. The House would also have to agree to the Senate adjourning for that period, but House procedures allow the Speaker to pass such legislation on the floor with fewer obstacles than the Senate, so it is important that the Speaker supports the move. As long as it does, it will be more difficult to prevent consent in the House of Commons.
Notably, the Constitution adds that if the House and Senate cannot agree on how long to adjourn, the president has the power to adjourn the entire Congress and also set a date for lawmakers to reconvene. It is. Let him postpone them until such time as he sees fit. ”
Therefore, if one chamber is willing to adjourn for at least 10 days, but the other chamber is not, it is conceivable that the president could adjourn for, say, 11 days and schedule the adjournment during that time.
President Trump won a historic victory this month, winning both 312 votes in the Electoral College and the popular vote in a modern-day landslide, sparking a red wave and securing a 53-47 majority in the Senate and a slim majority in the House. did. . And while it's possible that Republicans could have won a nominal majority in the Senate without Donald Trump, they wouldn't have had as much of a majority without the swell of public support for the 40. There is no room for debate. The 7th president.
Senate Democrats mounted an unprecedented blockade of President Trump's first term, at times attempting to block countless appointments, using the well-worn platitude that Trump claimed was illegitimate. (Democrats seem to think the public will forget that they too claimed that George W. Bush was illegitimate and used that as an excuse to block his appointment.) But Trump's victory in 2024 was so decisive that questions about its legitimacy would fall on deaf ears today. Now only acute cases of Trump Derangement Syndrome (TDS) are making such claims.
The Constitution provides a pathway for the Senate to confirm presidential nominees and make recess appointments as necessary, and will depend on the political will of senators when President Trump returns to the White House. All eyes will be on the Senate to see if it will take action.
Breitbart News senior legal contributor Ken Kurkowski is a lawyer who worked in President Trump's White House and the U.S. Department of Justice. Follow him on X (formerly Twitter) @kenklukowski.
Ken Blackwell is a former U.S. Ambassador to the United Nations Human Rights Commission and serves as Chair of the Conservative Action Project and Vice Chair of the National Policy Council. Follow him on X (formerly Twitter) @kenblackwell.
