Here’s What the Constitution Actually Says About Trump’s Recess Appointments Scheme

The Trump transition team is proposing that the president-elect forgo the regular advice-and-consent process and use his recess appointment power to fill his Cabinet—and perhaps install many other high-ranking officials—to avoid time-consuming confirmations. And if the fate of short-lived attorney general nominee Matt Gaetz is a harbinger, this ploy would also eliminate the real possibility of defeat and embarrassment before the Senate. Donald Trump never shies away from breaking with norms and traditions, but this time the courts should step in and remind him that the Constitution precludes his proposed end runs on the Senate.

The basic rule for the appointment of the principal officers in the executive branch is contained in Article 2, Section 2, Clause 2 of the Constitution: It says the president can “nominate” them and, “by and with the Advice and Consent of the Senate, … appoint” them. This is one of the vital checks that the Framers included in our system of checks and balances. The reason for this additional step was well stated by Alexander Hamilton in Federalist No. 76:

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body.

Another clause also allows the president “to fill up all Vacancies that may happen during the Recess of the Senate,” but those appointments “shall expire at the End of their next Session”—which in this case would not be until December 2026. Because these same provisions apply to federal judges, if the Trump team proceeds with this gambit, he could also fill the 40 or so current vacancies in the lower federal courts with his unvetted appointments, and even on the Supreme Court if a vacancy occurred there.

The plan to avoid messy Senate confirmations would use Section 3 of Article 2 to create a recess whose length would be controlled by the president, not the Senate, during which he will “fill up all Vacancies” created by the departure of the Biden administration. Although the appointments would last for only two years, Trump could repeat this gambit in January 2027 and effectively eliminate the advice-and-consent role of the Senate in the appointment process for his entire four years in office.

Fortunately, the text of Section 3 will not permit Trump to accomplish his goal of confirmation-free appointments. The whole text, with the relevant portion in italics, provides as follows:

[The president] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The first part, prior to the italics, says only that the president must provide a state of the union from time to time (no speech required) and may recommend measures to Congress. The parts after the italics have nothing to do with the portion on which Trump hopes to rely.

Far from being the open-ended authorization that the Trump team claims, this provision authorizes the president only “on extraordinary Occasions” to convene special sessions of either or both chambers. Once he has started such a special session, as part of that same clause (all of that within the two semicolons), it then adds that “in Case of Disagreement between [the two Houses], with Respect to the Time of Adjournment” the President “may adjourn them to such Time as he shall think proper.” According to Trump’s recess-appointment theory, he can use this adjournment power to create a recess with a length of his choosing, during which he can deploy the recess-appointment power to “to fill up all Vacancies” that currently exist, at which point he will allow Congress to reconvene.

The fundamental problem with this theory is that the power of adjournment is not a freestanding right of the president to tell Congress to go home for as long as he chooses. He can exercise that power only when there is an “extraordinary Occasion” and he has “convene[d] both Houses … in Case of Disagreement between them” as to when to adjourn. This means that Trump would have to call a special session of Congress when Congress is in recess, but he cannot do so unless both the Senate and the House are in recess. Even then, it can be invoked only if there are “extraordinary” reasons for doing so—and surely the swearing in of a new president and the need to appoint his top officials is not only not extraordinary but a regular event commanded by the Constitution. And last, the president can step in to set the time for adjournment after he has convened the special session and only if the two chambers cannot agree on adjournment.

For these reasons, the claim that the president has a freestanding right to send Congress home whenever he wants is directly contradicted by the text of the Constitution. Moreover, it is simply not believable that the Framers buried a tool that shifts great power from Congress to the president in a provision that gives no hint of doing so. As Justice Antonin Scalia observed, in an oft-quoted phrase in Whitman v. American Trucking Associations, the Constitution “does not, one might say, hide elephants in mouseholes.”

There is a further problem that Trump would have to overcome if he were to try to carry out his ploy. In NLRB v. Noel Canning, the Supreme Court made it clear that recess appointments are only a backup to the advice-and-consent norm, and that the court will not interpret the clause as “not offering the president the authority routinely to avoid the need for Senate confirmation,” which is exactly what the incoming president wants. Indeed, the Trump gambit would turn this rule on its head and bring to mind the definition of chutzpah as the child who kills their parents and begs the judge for mercy as an orphan.

Based on his long history, Donald Trump is fully prepared to violate the Constitution and let the courts tell him he was wrong. But this is not about Donald Trump alone. His invalid recess appointees are almost certain to take actions that would be overturned by the courts, from issuing rules to bringing cases to the courts or at the agencies. Too much is at stake to wait for judicial review. The Biden Justice Department, joined by the Senate, should make it clear that this recess-appointment ploy is as unconstitutional as it is unwise and should end before it begins.