President elect Trump has stated that he wants a new Senate majority leader who supports recess appointments for his nominees. This has led to criticism of Trump, with some viewing it as an attempt to bypass democratic norms.
Any analysis of this question must start with the Supreme Court’s outrageous decision in Noel Canning – an originalist disaster. I have argued that the original meaning of the Constitution has two requirements: (1) it limits recess appointments to vacancies that arise during a recess of the Senate and (2) it limits recesses where recess appointments can be made to intersession rather than intrasession recesses. (Intersession recesses occur between the annual sessions of the Senate as opposed to intrasession recesses, which occur during the annual session.)
Unfortunately, a majority of the Supreme Court in Noel Canning concluded otherwise, holding that the Clause allowed (1) recess appointments during intrasession recesses (for recesses there were at least 10 days long, but possibly for shorter recesses in some exceptional cases) and (2) recess appointments for vacancies that arose during a session of the Congress. Justice Scalia with three other justices dissented as to both issues.
Noel Canning means that the Trump Administration, if it has the cooperation of the Senate and the House, can use the Recess Appointment power to bypass the Senate confirmation requirement. This conflicts with the original meaning (and would be bad policy in my view) but let’s assign the blame where it belongs – to the majority in Noel Canning, with Justice Breyer writing the opinion, the three other progressives joining it along with Justice Kennedy for reasons known only to him. Had they properly interpreted the Clause, President Trump could not use the power in this way.
One suspects that Breyer and the other progressives would not be happy about a President Trump using the power in this way. But the fault lies with them. They mis-interpreted the Constitution in the context of President Obama making recess appointments. While they may have approved of Obama, the power extends to all Presidents, including to Presidents they dislike.
The Senate confirmation power is an important check on Presidents, making it harder for them to fill their administration with cronies who do not have the confidence of the nation. But Noel Canning struck a stake through the heart of the confirmation power.
As for President Trump, it is not surprising that he would be attracted to the Recess Appointment power. The Democrats used various delaying tactics to obstruct appointments during his first administration. And some Republicans Senators did not support some of his appointments. It would be great if Presidents followed the original meaning of provisions that limit their powers even when the Supreme Court has granted them wider powers, but that has rarely, if ever, happened.
With a change in the Court’s composition in the direction of originalism, now would be a great time to overrule Noel Canning. Perhaps some of the progressive justices might even be willing to reconsider their view now that Trump is the President. If Chevron can go after 40 years, Noel Canning can certainly go after a mere 10.
Posted at 8:00 AM