Recently, President Trump threatened to adjourn Congress in order to make recess appointments to fill vacant posts in his administration, citing constitutional chapter and verse as authority to do so. While there have been plenty of recess appointments in our history, no President has ever actually adjourned Congress before to make them. Not surprisingly, legal scholars disagree about the constitutionality of the President’s threatened course of action. Two constitutional provisions and a Supreme Court case are at issue.
First, Article II, Section 3 gives the President the power to adjourn Congress for as long as the President wants if the two Houses of Congress disagree “with respect to the Time of Adjournment”. So if the Senate adjourns and the House votes to disagree, or fails to vote at all, the President can adjourn Congress. That may sound open and shut, but it’s not.
We have to look at Article I, Section 5 which effectively says either chamber can adjourn for up to three days without consent of the other during a session of Congress. Any longer than three days, during a session of Congress, and the other chamber must consent.
So what’s to prevent Senate Majority Leader Mitch McConnell from adjourning the Senate for eight days, Speaker of the House Nancy Pelosi refusing to consent, and President Trump adjourning both houses of Congress for eight days under Article II, Section 3 in order to fill the roughly 250 vacancies in his administration for which the Senate has not given its advice and consent?
The answer is: The Supreme Court, that’s what. In a 2014 case [NLRB v. Noel Canning], the Supreme Court started by saying, “The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.” What is “sufficient length”? Therein lies the rub. A three-day recess was at issue in the case, and the Court could find no “single example of a recess appointment made during an intra-session recess that was shorter than 10 days.” Absent “unusual circumstances” like a national catastrophe, a three-day intra-session recess is too short for a President to invoke the Recess Appointments Clause, the Court ruled. Justice Scalia wrote a separate opinion, unsuccessfully arguing the President’s need to fill a particular slot can be just as urgent as a national catastrophe.
So, once again, we see a Supreme Court that has gone beyond the text of the Constitution, filled in some blank spaces with whatever formula struck its fancy that day, and achieved a result that is not required by the plain language of our founding documents. The formula that day was historical practice - no recess appointment has ever been made in our history during an intra-session recess shorter than 10 days. But the Court doesn’t always like history. A lack of history didn’t prevent the Court from making up fundamental rights to abortion and gay marriage, did it? It’s called results-oriented jurisprudence - pick the result you want, then pick the formula that will get you there. History one day, public opinion polls the next.
Hate to break it to you, folks, but there’s entropy in the law, and the result is that duly elected officials have their hands tied by the courts more than they should, and your vote doesn’t mean as much as it should, because unelected people in black robes like to make stuff up and overstep their role.
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