Recess Appointments Will Likely Return in 2017, by Sam Wice
After a six-year hiatus, legally valid recess appointments will likely return in 2017. 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.” In effect, recess appointments give the President the power to bypass, at least temporarily, Senate confirmation of a nominee.
As someone who was in the room where it happened (the Constitution was written) explained, recess appointments were intended to fill necessary, vacant positions when the Senate was unreachable. However, recess appointments are now used primarily to avoid Senate opposition to a candidate. Both President Bush and President Obama successfully used recess appointments to avoid or defer confirmation battles where it appeared a nominee could not obtain a filibuster-proof majority.
Recently, opposing party politics have greatly reduced the opportunities to use recess appointments. By practice, recess appointments now can only be used when both house of Congress and the Presidency are controlled by the same party. If the opposition party controls the Senate, they would deny the President a recess. When the Senate would normally take a recess, the Senate would instead have periodic “pro forma” sessions where a Senator would gavel the Senate open for the day and immediately end the legislative day. Even if the President’s party were to control the Senate, a House of Representatives controlled by the opposing party would use the Constitutional requirement that the Senate cannot adjourn for more than three days without the House of Representatives’ consent to prevent the Senate from going into recess. Thus, the Senate would still have to use pro forma sessions during its unofficial recess.
President Obama tried to claim that these pro forma sessions did not mean the Senate was in session, but he lost that argument 9-0. The Court also held that unless there are unusual circumstances, a Senate recess must last at least 10 days before the President may issue a recess appointment.
With full Republican control of both houses of Congress and the Presidency, the Senate will likely go on recess for the first time since 2010, and President Trump will have the opportunity to make recess appointments.
You might logically ask, with the elimination of the filibuster on (non-Supreme Court) nominees, why would the President still need to use a recess appointment? The President might need to use recess appointments because: 1) the Senate does not have enough time to consider a nominee and 2) Senate Republicans oppose a nominee.
Even with removing the filibuster on nominees, Democrats and individual Senators will still have a lot of influence over the nomination process. When Democrats lowered the threshold for nominees to a simple majority, they kept the time requirement to overcome a filibuster. Thus, if even one Senator wants to filibuster, the Senate must devote 30 hours of floor time to the nominee. While Republicans would likely be willing to use this time for more important positions like cabinet officials and the circuit courts, the floor time could add up quickly if used for multiple, lower-level openings. For instance, if the Democrats filibustered each of the current 114 judicial vacancies, Republicans would have to devote 3,420 hours to confirming the nominees. Assuming the Senate were to have an aggressive schedule of working 12 hours a day during the middle of the week and 6 hours each day on Monday and Friday (to allow members to travel to their districts), Republicans would have to devote 71 weeks to confirming all of the judicial nominees.
Realizing the power of imposing this time requirement, 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. For instance, Senator Shelby previously placed holds on all executive nominees so the President would address two issues related to Alabama.
To overcome these time requirements, President Trump could use recess appointment to appoint more controversial nominees (or where the amount of disclosure and/or timeline for reviewing the disclosure is controversial) to “less important” positions that the Senate does not want to devote the floor time to confirming. He could also use the power to side step a concerted effort by Democrats or even one Senator to force accommodations from the Trump administration.
Likewise, President Trump might use recess appointments to avoid Republican opposition to a nominee. The most likely use of this would be to confirm a head of the Bureau of Alcohol, Tobacco, Firearms and Explosives. Since the 2006 decision to make the agency head a Senate confirmed position, consistent Republican opposition based on pro-gun rights positions has resulted in the Senate only confirming one person to lead the agency. Even President Bush could not convince Senate Republicans to support his nominee to lead the agency. If history repeats itself, President Trump might have to use a recess appointment to fill the vacancy.
The next upcoming Senate recess is April 8-April 23, but that recess might be too soon for a controversy to arise warranting a recess appointment. However, when the Senate takes its August recess or Winter Holidays recess, do not be surprised when a Republican President makes recess appointments even though Republicans have enough members to confirm the nominee. Then again, the Senate could always go nuclear and change Senate practice to remove all the minority party’s power to oppose a nominee.
Sam Wice is an attorney adviser for the U.S. Government, 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. The views expressed herein are those of the author and do not necessarily reflect the views of the U.S. Government.