President-elect Donald Trump is threatening to turn the Constitution’s appointment process for Cabinet officers on its head. If what I’m hearing on the conservative legal grapevine is correct, he might resort to a cockamamie scheme that would require House Speaker Mike Johnson (R-Louisiana) to play a critical role. Johnson can and should immediately put an end to this scheme….
It appears that the Trump team is working on a scheme to allow Trump to recess-appoint his Cabinet officers. This scheme would exploit an obscure and never-before-used provision of the Constitution (part of Article II, Section 3) stating that “in Case of Disagreement” between the houses of Congress, “with Respect to the Time of Adjournment,” the president “may adjourn them to such Time as he shall think proper.”
Under this scheme, it appears that the House would adopt a concurrent resolution that provides for the adjournment of both the House and the Senate. If the Senate doesn’t adopt the resolution, Trump would purport to adjourn both houses for at least 10 days (and perhaps much longer). He would then use the resulting intrasession recess to appoint Gaetz and other Cabinet nominees.
Ten years ago, Supreme Court Justice Antonin Scalia labeled the president’s recess-appointment power an “anachronism” because “modern forms of communication and transportation” make the Senate always available to consider nominations. Along with three of his colleagues, Scalia also argued that the president’s power to make recess appointments is limited to intersession recesses and does not apply to the intrasession recess that the Trump scheme would concoct. The justice, who died in 2016, would be aghast at the notion that a president could create an intrasession recess for the purpose of bypassing the Senate approval process for nominations.
Mike Johnson should not be complicit in eviscerating the Senate’s advice-and-consent role. He should promptly make clear that the House will abide by its usual schedule of recesses and will not attempt to engineer a recess of the Senate.