Why Trump Shouldn’t Use Recess Appointments To Force Through Cabinet Nominees

Since Donald Trump’s reelection victory, some conservatives have discussed the possibility of using recess appointments, temporary appointments made while Congress is out of session, to fill positions in Trump’s new Cabinet. However, the discussions about recess appointments have generated more heat than light, with two groups frequently talking past each other.

Moreover, much of the discussion has focused on a scenario that seems unlikely to happen, could well get struck down in court if it did, and represents an unwise use of time and political capital. Herewith a few key points of analysis about the topic du jour inside the Beltway.

What Prompted the End of Recess Appointments

I had a ringside seat to the end of recess appointments while working at the Senate Republican Policy Committee from 2010-12. (Disclosure: At the time, incoming Senate Majority Leader John Thune, R-S.D., chaired RPC, but I couldn’t tell you the last time I spoke with Thune or his staff, and the views in this article, as always, are my own.) The nomination of Dr. Donald Berwick to head the Centers for Medicare and Medicaid Services (CMS) effectively ended the recess appointment power.

As the person who read nearly everything the man had written to that point, it was obvious that Berwick’s controversial views placed his nomination in serious jeopardy. Berwick worked for Britain’s National Health Service, about which he said he was “romantic,” and infamously claimed that “the decision is not whether or not we will ration care — the decision is whether we will ration with our eyes open.” Just as important, even though CMS “finances health care for one in three Americans and has a bigger budget than the Pentagon’s,” Berwick had zero management experience to run such a sprawling agency, beyond heading a small nonprofit.

Despite those serious questions, Berwick’s nomination was not dead on arrival. Even though confirmations required 60 votes to break a filibuster at that time, Democrats controlled 59 Senate seats. Moderate Republicans like Scott Brown (from Berwick’s home state of Massachusetts) and Maine’s Olympia Snowe and Susan Collins were potentially “gettable” votes, making confirmation possible, though not certain.

Yet in July 2010, Barack Obama gave Berwick a recess appointment — before the Democrat-controlled Senate Finance Committee ever held a confirmation hearing (which Republicans had repeatedly called for). Even left-wing commentators like Ruth Marcus of The Washington Post called Obama’s move “cynical,” “boneheaded,” and “outrageous.”

When they recaptured the House four months after Berwick’s recess appointment, congressional Republicans conducted pro forma sessions every three days, designed to keep Congress in continual session and prevent Obama from making any further recess appointments. Obama made a series of recess appointments anyway, but the Supreme Court struck down those appointments in a 2014 ruling, NLRB v. Canning, discussed further below. 

The Berwick recess appointment effectively represented an end-run around the Senate, with Obama installing a controversial nominee because Democrats, already facing huge political blowback from passing Obamacare, didn’t want to have to vote on Berwick’s confirmation. But what should transpire if the Senate outright rejects a Trump nomination this year?

What Won’t Happen

Several entities on the right have published works implying that, even if the Senate rejects one or more Trump nominees, Trump can or should use his power to recess appoint them anyway. (They haven’t said outright that Trump can appoint nominees the Senate has rejected, but they also haven’t said he cannot take such an action.) As others have outlined, that scenario almost certainly will not happen, for multiple reasons.

Creating recess appointments would require one or both chambers of Congress to adjourn for a period of at least 10 days to allow Trump to exercise his recess appointment power. It seems highly unlikely that, if or when the Senate votes down a Trump nominee, they would then vote to create a recess that would allow Trump to install that same nominee. How exactly would senators defend such a flip-flop to their constituents — “I voted against the nominee before I voted for it?”

In theory, the House could pass an adjournment resolution, and if the Senate refuses to agree to it, Trump could exercise his power under the Constitution (a power never previously exercised) to fix the time of Congress’s adjournment and put lawmakers out of session. But Republicans’ margins in the House are likely to be even smaller than those in the Senate, and Democrats would certainly reject this gambit en masse. 

Would moderates like Rep. Don Bacon, R-Neb., whose congressional district Trump lost by nearly 5 percentage points, vote for this procedural maneuver? Likely not. And while conservatives can attack them as spineless RINOs, it would not change the fact that narrow margins in the House mean even a few Republican dissenters could end this strategy before it began.

Even if this gambit did succeed in the short term, the optics of a president shutting down Congress to install nominees that the Senate had previously rejected would look horrible. It would represent the American equivalent of King Charles I dissolving Parliament in an attempt to govern without lawmakers’ consent. It would also require Trump’s lawyers to make an absurd argument: “The president needs to make these appointments because Congress is not in session — and Congress is not in session because … of the president’s decree.”

That gets to the main point: The chances of the Supreme Court blessing these types of recess appointments are effectively nil. Advocates of this strategy have selectively quoted the decision in NLRB v. Canning to claim the court would bless a Trump recess appointment maneuver. They generally ignore two relevant points.

First, then-Justice Antonin Scalia, along with three conservatives, wrote a concurrence in Canning opining that the recess appointment power should be far more limited and should not apply in the types of circumstances presently at issue. Scalia’s opinion also noted that, with Congress staying in session nearly year-round, “the need [the recess appointment power] was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process.”

Second, the majority opinion, written by then-Justice Stephen Breyer and joined by four moderates and liberals, noted that “it should go without saying … that political opposition in the Senate would not qualify as an unusual circumstance” legitimizing recess appointments (emphasis mine).

In other words, all of the justices serving on the court in 2014, five of whom — Sonia Sotomayor and Elena Kagan, who joined Breyer’s majority opinion, and John Roberts, Clarence Thomas, and Samuel Alito, who joined Scalia’s concurrence — still serve on the court, took a highly skeptical view of the president usurping the Senate’s confirmation power via recess appointments. Given this consensus across ideological lines, where exactly would Trump go to get five justices to bless what would amount to an explicit end-run around the Senate? Could he get any justice to agree with his position?

What Should Happen (but May Not)

That said, advocates of the recess appointment strategy do have a fair point: Particularly for sub-Cabinet level nominations, the confirmation process is long, time-consuming, and drags out the executive’s ability to “hit the ground running” on Jan. 20 and implement an agenda in a timely manner. Fixing this problem would require a combination of 1) streamlining the vetting process, 2) paring back the number of posts that require Senate confirmation, preferably by paring back government overall, and 3) getting bipartisan agreement on a package of noncontroversial nominees that can pass the Senate by unanimous consent, rather than taking time to go through the process of recorded floor votes.

The best time to address these types of issues would have been before the election results were known, in which case both sides would have had an incentive to advance legislative proposals, to help their party’s candidate should that candidate win the White House. Instead, the debate has now turned into a referendum on Trump and his specific nominees, making it more difficult to win the 60 Senate votes needed to advance legislative proposals. (If you think Senate Republicans will abolish the legislative filibuster for this, think again.)

Unfortunately, that means reform of the confirmation process may have to wait until 2029 — when there will be no incumbent president, and no one knows which party will control the Senate — to take effect.

The Bottom Line

While they may not like to hear it, the strategy of Trump adjourning Congress to appoint nominees the Senate has rejected amounts to one big bluff. It probably wouldn’t succeed in Congress and, even if it did, appears dead on arrival at the Supreme Court. Ironically, if this issue does end up before the court, and at least two of the conservatives who have joined since 2014 (i.e., Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) adopt the more restrictive interpretation of recess appointments that Justices Thomas, Alito, and Roberts endorsed in Scalia’s Canning concurrence, Trump could end up in a worse position than he is now, with presidential recess appointments effectively marginalized even further.

More importantly, the strategy is a waste of time and an inadvisable use of scarce political capital. The American people elected Trump to 1) clean up the border mess and 2) get inflation under control. They will not have much patience if his border actions spend years in legal jeopardy or get struck down by the Supreme Court because Trump decided to do an end-run around the Senate to install his preferred nominees. Likewise, if time and energy spent in a monthslong political spitting contest over nominations means the American people get socked with a massive tax increase at the end of next year, they will hold all Republicans accountable. 

Instead, events should proceed as they have in the past. The Senate should vet Trump’s Cabinet nominees and then give them all floor votes. Trump and his team can and should lobby on behalf of his nominees, but they should ultimately respect the Senate’s decisions. And then both should consider ways to streamline the process in the future.