Hurdles to making recess appointments
The federal government selects candidates for high-level positions in the executive branch and the judiciary in one of two ways: Senate confirmation or recess appointment. The president may also make recess appointments to fill vacancies in the executive branch and on the federal bench in lieu of waiting for Senate confirmation.
The Constitution requires that the House of Representatives first consent to the Senate adjourning for more than three days. The Adjournment Clause stipulates,
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 2014, the Supreme Court expanded the three-day threshold to ten days for recess appointments made during an intrasession recess of the Senate (i.e., recesses that occur entirely within a single year during a Congress’s two-year existence). The Court ruled in National Labor Relations Board v. Noel Canning et al.,
In light of historical practice, a recess of more than 3 days but less than 10 days is presumptively too short to fall within the [Recess Appointments] Clause. The word “presumptively” leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break.
According to the Senate’s precedents that regulate the adjournment process,
Under the Constitution, the Senate may not adjourn for more than 3 days without the consent of the House of Representatives, but with its consent the Senate has adjourned for varying periods in excess of 3 days ‘to a day certain.’ The Senate can always adjourn for varying periods, including a few minutes only, within the 3-day limitation without the consent of the House; in one instance, the Senate adjourned for more than 3 days from Saturday, June 3, 1916 until Thursday, June 8, by unanimous consent, without the concurrence of the House of Representatives, and it was called to the attention of the House membership but nothing further was ever done about it.
It is unclear how the 1916 precedent would impact a case between two private parties in the judiciary that involves decisions made by a recess appointee in similar circumstances. However, the Supreme Court’s reasoning in United States v. Ballin suggests that the Supreme Court could invalidate those decisions given the similarity between the two cases.
How the Senate Adjourns
The Senate may adjourn on motion or by unanimous consent. The Senate may also adjourn for more than three days by passing a concurrent resolution. However, the House must approve that resolution before the Senate can adjourn under it. A concurrent resolution is a resolution passed by the House and Senate but not presented to the president to be signed into law.
Any senator – not just the majority leader – may move that the Senate adjourn or adjourn to a particular date and time. Any senator may also ask his or her colleagues to consider a concurrent adjournment resolution to adjourn for more than three days.
In the former instance, a senator, once recognized by the Presiding Officer, would say something along the lines of the following.
Mr. [Madam] President, I move that the Senate do now adjourn until ___ next (or ___ am/pm tomorrow).
In the latter instance, a senator, once recognized by the Presiding Officer would say something like,
Mr. [Madam] President, I send to the desk a concurrent resolution, provided for an adjournment of the two Houses of Congress for ___ days (or until ___) and I ask for its immediate consideration.
Adjournment resolutions are not debatable. However, senators may offer amendments to them. Senate precedents stipulate,
A motion or resolution providing that when the Senate adjourn it shall be to a day certain is not debatable except by unanimous consent; nor is an amendment thereto debatable. Likewise, an appeal from the decision of the Chair relative to an adjournment resolution has been held not debatable.
The ability to offer amendments raises the possibility that a Senate minority may filibuster the resolution by amendment (i.e., prevent the Senate from voting on the resolution by continually offering amendments to it). That is, senators would defeat the resolution by offering amendments ad infinitum until the majority drops its effort to adjourn under the terms of the resolution.
Notwithstanding the impossibility of any senator (or group of senators) offering amendments ad infinitum, the Senate’s precedents empower the majority to overcome such obstruction. For example, the precedents that regulate the amendment process on the Senate floor stipulate that the resolution can only be amended once.
The language of an amendment from the floor, a committee amendment, an amendment to a committee amendment, a committee amendment as amended, or a substitute amendment, which has been agreed to by the Senate is not per se open to further amendment, unless reconsidered, or by unanimous consent.
In addition, the same precedents also stipulate that the Presiding Officer (i.e., the Vice President) “takes the initiative to rule an amendment out of order if it proposes to amend a part of a bill already amended.” Appeals of the Presiding Officer’s ruling are not debatable.
To prevent a senator (or senators) from filibustering an adjournment resolution by offering amendments to it, the majority leader could call for the consideration of an adjournment resolution and offer an amendment in the nature of a substitute striking everything after the enacting clause and inserting a preferable adjournment resolution. The Senate would then vote to adopt the majority leader’s amendment. The same logic holds regardless of the underlying branch on the amendment tree. According to the amendment precedents,
When an amendment in the nature of a substitute (that is, a substitute amendment) for a bill, or a substitute as amended, has been agreed to, the bill is not open to further amendment.
Adopting the amendment would empower the Presiding Officer to rule any additional amendments to the adjournment resolution out of order. While those rulings could be appealed, the appeals are non-debatable.
While Senate minorities are ultimately incapable of stopping a determined majority from passing an adjournment resolution over their objections, the House can prevent the Senate from adjourning for more than three days by refusing to take it up.
There is speculation that the president may adjourn Congress if the House refuses to consider the Senate’s adjournment resolution. It is based on Article II, section 3 of the Constitution, which empowers the president in “Case of Disagreement between [the House and Senate], with Respect to the Time of Adjournment” to “adjourn them to such Time as he shall think proper.” Alexander Hamilton similarly observed in Federalist 69 that “the President can only adjourn the national legislature in the single case of disagreement about the time of adjournment.”
No president has yet exercised this power, in part, because of the difficulty in doing so.
The Constitution does not empower the president to adjourn the Senate if the House refuses to consider a Senate-passed adjournment resolution. This is because the House and Senate would not be in a state of disagreement. Disagreement requires that the House and/or the Senate take action to disagree with the other chamber’s proposal.
Disagreeing to the other chamber’s proposal with a further amendment or insisting on the original proposal/amendment begins the formal process of reconciling differences between the two chambers (i.e., the conference committee process). According to Senate precedent,
The body in which the bill originated could concur in the…amendment, clearing the bill for enrollment and signatures of the Presiding Officers of the two Houses; or if it disagreed to the amendments, it could ask for a conference thereon.
In exercising his constitutional power to adjourn the Senate in cases of disagreement between the House and Senate when the House has not yet acted on an adjournment resolution, the president would be infringing upon the House’s constitutional power to order its internal proceedings and, by extension, to prioritize the measures it considers.
Given the challenges associated with the recess appointment strategy in the current environment, Senate confirmation appears the best way to confirm presidential nominees. Senate confirmation is based on the institution’s existing rules and practices. Furthermore, the Vice President presiding over the Senate (which can’t be blocked by 1 or 100 senators) maximizes the president’s chances of success. It also demonstrates effort in a way that reaffirms the Constitution and the separation of powers whereas the recess appointment strategy appears to undermine both.
The Democratic-controlled House approving a request by Senate Republicans to adjourn for more than ten days so that President Trump can make recess appointments appears unlikely in the present political dynamic. Given the challenges associated with the recess appointment strategy in the current environment, Senate confirmation appears the best way to confirm presidential nominees. Senate confirmation is based on the institution’s existing rules and practices. Furthermore, the Vice President presiding over the Senate (which can’t be blocked by 1 or 100 senators) maximizes the president’s chances of success. It also demonstrates effort in a way that reaffirms the Constitution and the separation of powers whereas the recess appointment strategy appears to undermine both.