This came up in one of the many many many conversations about our current political situation, but I’m trying to keep this GQ. The argument was that if the Senate were to refuse to consider a President’s nominees, he could force the Senate to adjourn for more that 10 days IF the House is willing to go along with it. Then the President could use his recess appointment power to fill the positions until the next session of Congress.
Can anyone explain the Constitutional mechanics here? Has this ever been done?
He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
Why does he have that power?
Article I, Section 5
Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.
In the United States, a recess appointment is an appointment by the President of a federal official when the U.S. Senate is in recess. Under the U.S. Constitution’s Appointments Clause, the President is empowered to nominate, as well as with the advice and consent (confirmation) of the United States Senate, make appointments to high-level policy-making positions in federal departments, agencies, boards and commissions. A recess appointment under Article II, Section 2, Clause 3 of the Constitution is an alternative method of appointing officials that allows the filling of vacancies to maintain the continuity of administrative government through the temporary filling of offices during periods when the Senate is not in session.
On occasion and controversially, this power has also been used to temporarily install an unpopular nominee by sidestepping the Senate’s role in the confirmation process;[1] the Senate has taken measures from time to time to prevent a President making recess appointments. In April 2020, President Donald Trump claimed that the President’s constitutional power to, “on extraordinary occasions, convene both Houses, or either of them”, a power that has been used only once[2] before, empowers him to convene both houses of Congress and enables him to make appointments while Congress is in recess. Appointments made in recess must be confirmed by the Senate by the end of the next session of Congress, or the appointment expires. In current practice this means that a recess appointment must be approved by roughly the end of the next calendar year, and thus could last for almost two years.
So does this apply to judges as well as cabinet ministers? If so, what happens when a recess appointment expires - does the judge have to leave the bench mid-trial because his appointment expired?
Plus, can the senate arbitrarily re-adjourn to end a session and cancel the appointment, or is a session by definition until the next election?
The U.S. doesn’t have cabinet “ministers”, but, yes, it applies to judges and every other office to which the President has the power to appoint someone. It’s most commonly used for executive branch positions, but it has been used judges and even Supreme Court justices.
Yep. The Constitution doesn’t make any exceptions - the recess appointment expires when it expires.
A “session” isn’t clearly defined in the Constitution, other than that the Congress must meet annually. It’s generally agreed that a “session” lasts from the first day Congress meets in a calendar year until the last day it meets in that same year. The Senate and the House have to agree on adjournment, as outlined above, but if a majority in both chambers really wanted to nix a recess appointment in a really passive-aggressive way, in theory they could adjourn until the next year when ever they wanted to.
It seems the Senate cannot adjourn for more than three days without the consent of the House. They do not have that permission so they hold pro-forma sessions which last all of a minute.
The president can’t stop this because they are never, technically, out of session.
Basically they found a loophole and the supreme court has let them get away with it (the supreme court says they have to be adjourned for 10 days and as it is they never adjourn for more than three days via pro-forma sessions).
The President can only force adjournment if the House and Senate disagree on when to adjourn. Since when Republicans controlled the Senate during his term they also controlled the House, there was no disagreement.
But if the senate cancelled the president’s appointment by “ending the session” then the president simply re-appoints his choice the next day. It seems to me the senate would have to end a session and reconvene ASAP before the president had time to re-appoint.
Is a session something that applies separately to house and senate, or do both have to agree the session is over for both at the same time?
That would be a pretty clear end-run around the clear intent of the Constitution, but sure, the President could try that. The result would undoubtedly be a lawsuit, and probably the Supreme Court having to wade into the mess to try to resolve the ambiguities. Or washing its hands of the whole mess, and saying it’s a political dispute that the Executive and Legislative branches have to figure out between themselves.
The way the Congress actually works in 2020, not to mention the way information technology and physical travel work now, are just so far removed from what the framers had in mind when they wrote the adjournment and recess rules in 1787, that they really don’t make much sense anymore. Any attempt to rigorously apply them is going to wind up with silly results.
See Saint_Cad’s first reply, Post #2. A session applies jointly to both houses, and they both have to agree to adjourn at the same time. If they don’t, the President has the power to resolve the dispute.