How House Republicans Could Allow President Trump to Make Recess Appointments

by Sam Wice — Thursday, Mar. 15, 2018

President Trump has recently complained that Senate Democrats have prevented his nominees from getting confirmed.  Even though the Senate eliminated the 60-vote threshold to end a filibuster on a nominee, the Senate still requires 30 hours of debate before voting on the nominee.  While Republicans have been willing to devote 30 hours of floor time for higher-level positions, as the required floor time can add up quickly, Republicans have chosen not to use the time on lower-level nominees.

Republicans could break this impasse through recess appointments.  With the Easter Recess starting next week, the House of Representatives could force the Senate to go on recess, allowing President Trump to make temporary, recess appointments.

The president’s power to make recess appointments would normally allow the president to at least temporarily get his nominees in office, but the Senate has prevented its use.  The Constitution gives “[t]he President [the] Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”  As I previously explained, Senate Republicans have decided (likely do not have the votes) to prevent the Senate from going on recess.  Instead, the Senate has held “pro forma” sessions where the Senate technically meets at least every three days, even if the meeting is only for a minute.

However, the Constitution allows the House of Representatives to force the issue and to empower President Trump to require the Senate to go on recess, opening up the option to make recess appointments.  The Constitution requires that the House of Representatives or Senate “without the consent of the other, [cannot] adjourn for more than three days. . . . [I]n case of disagreement between them, with respect to the time of adjournment, [the president] may adjourn them to such time as he shall think proper.”  Thus, if the House of Representatives votes to go on recess, but does not get the Senate’s consent, it can appeal to President Trump to resolve the issue.  President Trump could then side with the House of Representatives, forcing the Senate on recess and allowing him to make recess appointments.

Although the president resolving an adjournment dispute between the House of Representatives and Senate has never occurred, the concurrence in Noel Canning endorsed this scheme: “Members of the President’s party in Congress may be able to prevent the Senate from holding pro forma sessions with the necessary frequency, and if the House and Senate disagree, the President may be able to adjourn both ‘to such Time as he shall think proper.’”

However, the Senate would still have an option to prevent President Trump from forcing the Senate to recess.  If the House of Representatives were to go on recess, the Senate could consent to the House of Representatives recessing, but still opt not to adjourn the Senate.

Nevertheless, Senate Republicans could easily prevent such consent.  Senate Republicans would only need not bring the House of Representatives’ recess up for a vote.  Thus, the House of Representatives, with the tacit consent of the Senate, could force the Senate on recess and provide President Trump an avenue to make recess appointments.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Sam Wice

Sam Wice is a former analyst at the Congressional Budget Office and a former Council Member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He can be reached at sam.wice[at]outlook.com.

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