Notice & Comment

Recess Appointments Revisited

In January, I wrote that recess appointments would likely return this year because the same party controls the presidency, Senate, and House of Representatives.   With an upcoming recess, I thought now would be a good time to revisit the subject and figure out why I was wrong.

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.”  To recess, the Senate must pass either a “motion to adjourn to a day certain” or “a motion to recess.”  Although generally similar, adjournment starts a new legislative day while a recess continues an existing legislative day.  Absent approval for one of the motions, the Senate must hold pro-forma sessions that require the Senate to have nominal meetings every three days.  Although the recess appointments clause only specifies recess, the Supreme Court in Noel Canning found that both an adjournment and recess could trigger the recess appointments clause of the Constitution.

Motions to adjourn and motions to recess are easy to pass.  Senate Rules specify that they take precedence over any other motion and the “motions relating to adjournment [and] to take a recess . . . shall be decided without debate” (i.e., cannot be filibustered).  The only way Senate Democrats could delay such a motion is to propose an amendment.  Theoretically, Senate Democrats could require a near infinite number of amendment votes on the motion.  However, Senate Republicans could avoid the delaying votes fairly easily.  Under Senate Rules, motions to adjourn to a day certain and motions to recess take precedence over motions to amend and thus could be voted on before any amendments are considered.

Why then have Senate Republicans refused to take an official recess and have instead used pro-forma sessions: 1) Senate Republicans can extract Democratic concessions by not going on recess, 2) Senate Republicans may want to preserve the general power of the Senate to confirm nominees, and 3) Senate Republicans could be concerned about how President Trump might use his recess appointment authority.

First, Republicans can get concessions from Democrats by threatening a recess.  For instance, as part of the negotiations to ensure that there was no official August recess, Senate Democrats agreed to confirm more nominees than the Senate had confirmed in the rest of President Trump’s entire presidency.  Although confirming large batches of nominees before a recess is not unusual, this list of nominees included nominees to which Democrats opposed.  Similarly, if Republicans went on an official recess, over Democratic objections, Democrats likely would not have agreed to confirm any nominees.

Second, Senate Republicans may want to preserve the general power of the Senate to confirm nominees.  Mitch McConnell has strongly supported the constitutional role of advice and consent.  In addition to the general increased power of the Senate from approving nominees, the individual power of most Senators to influence presidential authority comes from the Senate’s role in approving nominees.   Senators have historically promised to filibuster a nominee or set of nominees (otherwise known as a “hold”) to force the President to address an issue important to the Senator.  Even though the Senate has gotten rid of the need for 60 votes to end a filibuster of a nominee, the Senate still needs to devote 30 hours of debate before voting on the nominee.  For instance, Senator Shelby previously placed holds on all executive nominees so that President Obama would address two issues related to Alabama.  Even members of the President’s party have used this authority.  Senator Landrieu placed a hold on an Obama cabinet nominee so that the Obama Administration would allow oil drilling in the Gulf of Mexico.  Senate Republicans might not want to establish a precedent of removing such a large source of a Senator’s power.

Third, Senate Republicans could be concerned about how President Trump might specifically use his recess appointment power.   President Trump has alluded to firing special counsel Robert Mueller and/or deputy attorney general Rod Rosenstein.  Senate Republicans might wish to prevent Trump from firing them and immediately appointing a deputy attorney general who would eliminate the investigation into President Trump.

This worry regarding how President Trump would use a recess appointment is especially important because the Senate would have to vote on a motion.  Senate Democrats would frame the vote as an attempt to ensure President Trump does not obstruct justice.  If President Trump ends up using the recess to appointment new Justice Department officials, the vote would provide immediate campaign-advertisement fodder.  With all 49 Democrats guaranteed to vote against the motion, Senate Republicans could only afford to lose two votes.  However, Republicans are likely to lose a few votes because several Republican Senators have expressed concerns about President Trump’s interfering with Mueller’s investigation.

Even with Democrats using every tool available, they cannot prevent the Senate from going on recess and allowing President Trump to make recess appointments.  However, Senate Republicans might not have the votes to go on recess and they likely benefit more from threatening a recess than attempting a recess vote that they would likely lose.

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