Washington (AP) Come January, the White House and both chambers of Congress will be under Republican control. However, the Senate’s constitutional duty to advise and consent on presidential nominees has been put in jeopardy by President-elect Donald Trump’s intention to appoint loyalists to important Cabinet positions.
The idea of utilizing temporary recess appointments, which are only valid for a maximum of two years, is being discussed by Trump and his Republican allies in the Senate.
Using that power might lead to a battle that ends up in the Supreme Court. If the Senate refuses to go into recess, Trump may also need to assert yet another, previously untapped power.
Only one recess appointment case has been decided by the Supreme Court.
Only one decision involving recess appointments has been decided by the Supreme Court in its 234-year history. The National Labor Relations Board appointments made by Democratic President Barack Obama during recess were declared unlawful by the court in a unanimous decision in 2014.
However, they were diametrically opposed to the decision’s scope. A narrow finding supported by five justices concluded that the Senate was not in recess when Obama took action and that a break had to be at least ten days before the president could take independent action.
Writing on behalf of the other four judges, Justice Antonin Scalia would have ruled that breaks during a session are not the only constitutionally permitted recess; rather, the only constitutionally permitted recess takes place in between the annual sessions of Congress. That would have disqualified Trump from any potential appointments following his inauguration and the start of the new Congress in January.
Conservatives’ earlier decisions could provide hints.
There are only two justices left from the five-justice bloc that adopted the stance that upheld the president’s authority to select people during recess during a congressional session: Elena Kagan and Sonia Sotomayor. John Roberts, Clarence Thomas, and Samuel Alito were the other three who joined Scalia’s opinion, which would have made recess nominations very difficult for any president in the future.
Since then, Trump’s three high court appointments during his first term have caused the remainder of the court to shift toward conservatism. This is an uncommon problem in the courts, and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett have no record on it. Neither does Democratic President Joe Biden’s 2022 appointee Justice Ketanji Brown Jackson.
Original meaning and adherence to precedent are at odds.
Although it’s not a given, a more conservative Supreme Court could rule differently today. When the court renders a decision in a matter, it is considered precedent and is not readily disregarded. Therefore, even some justices who initially disagree with a decision will support it in subsequent cases involving the same issue.
Using his originalist interpretation of the Constitution, right-wing hero Scalia came to the conclusion that the framers’ intentions were clear.
He stated that the purpose of the 1787 constitutional provision on recess appointments—which was enacted during the horse-drawn carriage era—was to prevent the Senate from being summoned in a timely manner to fill important vacancies.
On June 26, 2014, Scalia read aloud a summary of his reasoning in the courtroom, stating that the authority to schedule recess appointments is outdated.
According to him, the Senate can always be called quickly to discuss a president’s selections.
According to Scalia, the only legitimate application for the recess appointment power is to allow presidents to evade the Senate’s involvement in the appointment process, which is exactly what occurred in this case.
How might the matter be brought back before the supreme court?
It is unlikely to occur rapidly. The only person with the legal standing to suit would be one who has been impacted by an official’s actions after they were appointed to a recess. Obama’s recess appointees in the NLRB case were announced in January 2012.
Then, in a disagreement over contract talks with a local Teamsters union, the board decided against Noel Canning, a soft drink bottling company in Yakima, Washington. The business filed a lawsuit, arguing that the NLRB’s ruling against it was invalid due to fraudulently selected board members and a lack of sufficient board members to conduct business without them.
Almost two and a half years later, the Supreme Court rendered its final ruling.
Among recess appointments, who is who?
Chief Justice Earl Warren, Justice William Brennan, and Federal Reserve Chairman Alan Greenspan are some of the most well-known individuals who were initially appointed during recess and subsequently confirmed by the Senate. John Bolton, the U.N. ambassador appointed during recess by Republican President George W. Bush, is one of several who resigned after failing to secure a Senate vote.
Trump might attempt to compel a Congressional break.
If Trump were to invoke a constitutional provision that his supporters claimed would allow him to make recess appointments and force the Senate to adjourn even if it doesn’t want to, that would present a separate fresh legal difficulty.
The Constitution’s Article II, Section 3 contains a provision regarding legislative adjournments that has never been used. Trump’s supporters interpret it as granting the president the authority to intervene when the Senate and House cannot agree on when to adjourn. According to the clause, if they cannot agree on a time for adjournment, he may move them to a time he deems appropriate.
However, several academics, especially conservatives, contend that the Senate cannot be forced to adjourn by the House, and vice versa. Article I, which governs congressional adjournments, stipulates that when one house wishes to take a break longer than three days, the other chamber must agree. According to this theory, the president could only step in if one house objected to the other’s plan for adjournment.
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