President-elect Donald Trump is considering using recess appointments to confirm some of his reportedly controversial cabinet picks. Trump argued last month on a Truth Social post that “recess appointments” would enable his new administration “to get people confirmed in a timely manner.”
It’s tradition for a president to nominate various persons for his Cabinet, other administration positions, and the judiciary. The Senate must confirm the nominees through the confirmation process known as “Advice and Consent”. This process usually entails formal visits with senators, background checks on nominees by the FBI or the committees of jurisdiction, hearings with the nominee and other witnesses who either support or oppose the nominee, a committee vote to discharge the nomination to the floor, debate on the floor, and a final confirmation vote via a roll call vote.
The Constitution allows the president to appoint Cabinet officials when the Senate is out of session, also known as “recess”, bypassing the traditional Senate confirmation process. If the House agrees to recess and the Senate does not act, Trump may use Article 2, Section 3 authority to recess Congress. The Adjournment Clause says that the president “may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.”
Persons installed without Senate confirmation are in the role temporarily on an “acting” basis. They may only serve in the role until the end of a given, two-year Congress. The Founders crafted the concept of a recess appointment so the government could have a stand-in for a period if a given office suddenly became vacant due to death or resignation. In the early days of the U.S., Congress was often out of session for months at a time, and Members did not live in D.C. full-time. Recess appointments were created as a fail-safe if Members were delayed in reconvening to appoint someone to an important government post.
House Speaker Mike Johnson said on Fox News Sunday, “I think it’s an important principle for us to maintain that an incoming president gets to select their own team. I think, I think that’s an important principle. The advise and consent responsibility is given to the Senate and the Constitution. They need to take that seriously, and they will. They’ll properly vet nominees, and that process will play out. But look, I’ll just say this about a number of the nominees that have been appointed — I think President Trump is looking for persons who will shake up the status quo, and we got a mandate in this election cycle to do that the status quo is not working for the American people.”
In 2014, the Supreme Court said in NLRB v. Noel Canning that more than three days are needed to allow the president to make recess appointments. The high court held that a Senate recess or adjournment must be at least 10 days before the president can fill recess appointments. All nine justices at the time agreed that the president could use the Adjournment Clause to force an adjournment long enough to make recess appointments, as long as there was a disagreement between the Senate and the House on when to adjourn.
President Trump did not have any recess appointments in his first term, and neither has President Biden. President Obama had 32, with the last four all happening on January 4, 2012. Three were positions at the National Labor Relations Board and the fourth was for the Director of the Consumer Financial Protection Bureau. President George W. Bush had 171 recess appointments, and President Bill Clinton had 139.
Speaker Johnson added on Fox News Sunday, “I wish the Senate would simply do its job of advice and consent and allow the president to put the persons in his Cabinet of his choosing. But if this thing bogs down, it would be a great detriment to the country, to the American people.”
