In 2014, the Supreme Court unanimously rebuked President Barack Obama for trying to make illegal recess appointments while the U.S. Senate was not in recess.
All nine justices, including the two whom Obama had appointed, dismissed his laughable assertion that he, rather than the Senate itself, could declare the Senate to be in recess and make such temporary appointments possible as a consequence.
This had been sneaky of Obama, but there was one trick he, fortunately, did not attempt. Article II, Section 3 of the Constitution states that the president “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.”
No president has ever done this. But Obama could have. At that time, Democrats controlled the Senate, but the House Republican majority had used its constitutional leverage (neither House can adjourn for more than three days without the other’s permission) to prevent an adjournment so as to prevent recess appointments.
Had Obama thought to go that extra mile (or if he did think of it, had he been willing), he could have sought the help of Senate Democrats and adjourned Congress. This could have set a terrible precedent, creating a permanent loophole for unlimited presidential recess appointments by his successors. It would have rendered moot the Constitution’s requirement that the Senate confirm presidential nominees. This is surely not what the Founders envisioned — that future presidents could simply adjourn Congress for a few weeks and make all the appointments they needed for years to come, obviating the requirement for Senate advice and consent.
This week, President Trump has threatened to do what Obama did not. For all of the times Democrats and the national media have falsely claimed Trump was doing something “unprecedented,” here is a true case of it. Members of both parties must recognize that this goes way beyond Trump and take action to prevent future presidents from wielding such threats or taking such actions.
We recommend, as we did more than seven years ago, that Democrats and Republicans come together and pass a constitutional amendment abolishing the recess appointment and send it to the states for ratification. For now, Senate Majority Leader Mitch McConnell has responded prudently, promising to take up Trump’s nominees rather than permit such a precedent. But members of both parties should recognize the threat here and take action to close this loophole, even if their solution won’t take effect for several years.
As we wrote in January 2013:
All of this remains true today. The recess-appointment power, used by recent presidents in both parties as a mere partisan weapon, has no legitimate purpose. But now, an additional danger is evident in it. A president could use recess appointments in conjunction with the adjournment power to break the Constitution. Absent action today, future presidents will find a way to put the Senate into recess, then use the recess as an excuse to make recess appointments.
We maintain that the recess-appointment power, not the adjournment clause, is the real problem here. As the late Justice Antonin Scalia wrote in 2014, the recess appointment is already “an anachronism” anyway, and no one loses anything from its abolition. But now, there is this additional argument. Without this power, the so-far-unused presidential power to adjourn Congress would no longer pose a serious threat.
Democrats should instantly recognize that Trump’s threat is aimed squarely at them right now. Republicans, meanwhile, should not interpret this proposal as anti-Trump. Think back to Obama — this is needed to limit future Democratic presidents. Besides, Trump could be many years retired before it can be ratified by the required three-fourths of the states.
Both parties have an interest in an executive with limited powers. If Congress wants to reassert its authority in a bipartisan manner, this would be a great way to do it.
