Why Trump’s Recess Appointment Gambit Won’t Work

Nothing sustains a political blood feud more than memories of outrageous injustices. 

Democrats have never gotten over the refusal of Senate Republicans to take up the Merrick Garland’s nomination to the Supreme Court. 
 
Republicans still nurse a deep grudge over the impeachment of President Trump over a ham-handed and failed attempt to get Ukrainian officials to investigate Hunter Biden.

And Democrats will never forgive the Republican members of the House and Senate who voted to steal the presidency from Joe Biden just hours after a Trump-inspired mob ransacked the Capitol. 

But none of that is likely to match the breakdown of civility and decorum at the Capitol if a Republican Congress gives a newly elected President Trump a constitutional pretext to make recess appointments and install cabinet members and agency heads without Senate confirmation. 

With Trump, of course, everything is political theater, so it’s not clear whether all the talk of recess appointments is real or simply a feint designed to muscle Senate Republicans into supporting his nominees. That creates a tough predicament for Republican Members who haven’t drunk the Trump Kool-Aid and still have a shred of self-respect. They can respond, as they already did with Attorney General designee Matt Gaetz, with back-channel threats to vote down the most egregious nominations, hoping that Trump will withdraw them. Should that fail, they are left with only unpleasant options: 

(1) confirm nominees knowing they know will be political and policy disasters;

(2) go along with the recess appointments gambit, avoiding having to take a stand on the nominations but undermining the power and prerogatives of Congress; or 

(3) refuse to go along with both the nominations and the recess appointments, guaranteeing themselves a nasty primary challenge and endless harassment by the right-wing social media mob. 
 
The course of the second Trump term may depend on whether there are a handful of Republicans in each chamber with the courage, self-respect, institutional loyalty, and concern for the constitutional order to choose Door #3.  

For the moment, the prospect of 51 Republicans confirming the most controversial nominations – Door #1—looks slim. The preposterous Gaetz nomination has already been withdrawn, while those of Pete Hegseth to be secretary of defense and Tulsi Gabbard as director of national intelligence face long odds. Unlike other committees, the Senate Armed Services and Intelligence Committees have maintained the seriousness of purpose and bipartisan cooperation that makes it unlikely they sit still for anyone they thought could undermine national security. If those are withdrawn, Trump’s momentum and aura of invincibility will fade, and Republicans will be emboldened to question others whose only qualification is loyalty. 
  
For Trump, that will mean the only way to get the in-your-face appointments he seeks is to bully the Senate Republicans into adjourning for a long enough period to allow him to exercise his constitutional prerogative to make recess appointments. In a recent decision, NLRB v. Canning, the Supreme Court ruled that a recess of at least 10 days was necessary to justify bypassing the confirmation process to assure the continued functioning of government. For that to happen, however, the Republican Senators opposed to any of the nominees would have to vote for a recess whose only purpose was to circumvent their opposition. 

If the Senate refuses to adjourn, the Republican House could try to force its hand by announcing its intention to adjourn for more than three days, which under the Constitution requires concurrence of the Senate. When the two Houses can’t agree on adjournment, the Constitution gives the president the power to adjourn both chambers “until a time he shall think proper.” 

Trumpworld, not surprisingly, is electrified by the fantasy that their man can shut down Congress anytime he wants. But should Trump manage to engineer such an adjournment, the validity of any appointments would immediately be challenged in court. And even a Supreme Court as Republican-friendly as this one would be likely to uphold the power of a president to make appointments during a recess he himself had declared for a transparently unconstitutional purpose. 

 “We seek to interpret the Clause as granting the President the power to make appointments during a recess,” the Court warned in the Canning decision, “but not offering the President the authority routinely to avoid the need for Senate confirmation,” 

In a concurring opinion joined by Justices Roberts, Thomas Alito, the late Justice Antonin Scalia went even further, arguing that because modern transportation had eliminated the need for members of Congress to be away from the Capitol for long stretches of time, the rationale for recess appointments no longer existed. “[I]ts only remaining use is the ignoble one of enabling the president to circumvent the Senate’s role in the appointment process,” he wrote.

 If Trump is to fill his Cabinet with unqualified kooks, clowns, and reality TV stars, he’ll have to do it the old-fashioned way—with the advice and consent of a craven and dysfunctional Senate. 

Steven Pearlstein is a Senior Fellow at Penn Washington and director of its Fixing Congress Initiative.  He is also Robinson Professor of Public Affairs at George Mason University and a former columnist at the Washington Post.