President-Elect Trump is already proposing to bypass a Republican-controlled Senate to install many of his nominees. But could he also do that to fill a seat on the Supreme Court? Yes, albeit briefly.
Did you mean to strike the word cowardice but leave the strike-through for us to read? If so, why? In any event, why the change of heart. You were correct with your initial word choice.
I am not aware of the presidential power to adjourn Congress in the case of a disagreement ever being used though we never had a felon that was subject to multiple indictments elected before either.
While everyone is criticizing the Democrats for all their faults, the cowardice of Republicans is something to remember.
Trump's proposed scheme is clearly unconstitutional. He's essentially proposing that the Senate delegate its advice and consent function to the president. Nothing about that scheme is consistent with our Constitution. Even the proposal violates the president's oath and duties. Trump must "faithfully execute the Office of President of the United States" and "to the best of" his "Ability, preserve, protect and defend the Constitution of the United States." Specifically, he "shall take Care that the Laws be faithfully executed." Article VI emphasized that "the supreme Law of the Land" starts with our "Constitution."
Article VI requires all Senators to support (swear to support) our Constitution, and they in fact all necessarily swore to support and defend our Constitution, not Trump. Article I assigned to the Senate the duty to adjudicate impeachments and, essentially, to also adjudicate certain nominations. Senators have no power to ignore (knowingly violate) their assigned duties. To use the language of Trump v. United States, they have no power to violate their "core constitutional" duties for the mere convenience of the president. They are public servants, not Trump servants.
In a dissenting opinion in Gundy v. United States, 588 U.S. 128 (2019), Justices Gorsuch and Thomas and Chief Justice Roberts emphasized that “the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice” about when and where “to vest” any “power” in any part of federal government. That is de facto and de jure exactly why the first sentences of Articles I, II and III expressly emphasize the “Powers” or “Power” that the people “vested in” the House of Representatives, the Senate, the President and courts.
“And,” the Gundy dissenters added, “the separation of powers” is “about safeguarding a structure designed to protect” not only the sovereign people and “their liberties” as a collective, but also “minority rights, fair notice, and the rule of law.” They continued:
Our founding document begins by declaring that “We the People [did] ordain and establish this Constitution.” At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest [parts of] the authority [of the sovereign people] to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies.
In a dissenting opinion in Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787 (2015), Chief Justice Roberts and Justices Scalia, Thomas and Alito emphasized that the majority opinion had emphasized that the “animating principle” (the primary purpose) of our entire Constitution was to secure “popular sovereignty” (the sovereignty of the people over all public servants). Then, the dissenters, themselves, emphasized that “the ratification of the Constitution was the ultimate act of popular sovereignty, and the people who ratified” it “did so knowing that it assigned authority to ‘the Legislature’ as a representative body” (to represent the sovereign people).
The Senate's assigned duties include reviewing the president's choices for certain of our public servants. As you emphasized, Professor Vladeck, their duties are especially powerfully compelled with respect to “judges,” who if they “behave properly, will be secured in their places” after they are appointed. The Federalist No. 79 (Hamilton).
Trump's scheme calls to mind much of Marbury v. Madison. Even if employees of all three branches of government conspire to violate the Constitution, they cannot make knowing violations of our Constitution constitutional.
Would the principle that " a government official cannot do indirectly what she is barred
from doing directly," Nat'l Rifle Assoc. v. Vullo (U.S. 2024, slip op. 11), apply to Trump's reliance on, or abuse of, recess appointments to evade the usual Senate review under the Appointments Clause?
> Thus, under Noel Canning, so long as the Senate recesses for at least 10 days, then the President may use the Recess Appointments Clause to fill vacancies—whether those vacancies arose during that recess or earlier.
You didn't mention Scalia's concurrence. He (and the other conservatives) would have required that the vacancy arise during, but not before, the recess.
Not only is Scalia's interpretation is the more straightforward reading of the text — "Vacancies that may happen *during* the Recess of the Senate" — but it makes practical historical sense as well. If a vacancy arose before recess, that means a previous session of the Senate had the opportunity to approve an appointment and did not. So the Appointments Clause should control, not the Recess Appointment Clause.
I'd be interested to see how the current Court rules on this question if it comes up. It seems like the sort of case that could produce a strange lineup
This is one of several issues that Professor Vladeck needs to revisit. If I read the Article correctly he seems to imply that a Recess Appointee would remain in office until the next election. That is correct, if but only if the Senate remains in session ----actual OR proforma ---thought out the two year term. That gets hard to do and Professor Vladeck should at least point that out.. Also, the count of Recess appointed Justices is off. Holmes was nominated by TR on 12/02 and confirmed 2 days later without objection. The practice of holding hearings did not start until Brandeis was nominated and did not become the normal practice until Frankfurter was nominated. Brandeis refused to appear and was narrowly confirmed. Frankfurter did appear and refused to answer any questions on grounds that the case might come before him. When Scalia refused to say whether Marbury v .Madison was good law that involved invoking the "Frankfurter Defense." Actually, since the issue of Jewish and Black Seats on the Court seems no longer in doubt, the Senate should consider avoiding hearings; they are terrible at it.
Yes but the Democrats can Filibuster and there are probably 5 or 6 Republican Senators who would not go along with the Trump plan anyway because the margins in some of the Red States as well as the few red seats in Blue states are anorexic. There was a famous exchange between Ted Sorensen and a Reporter ( after Ted had left the White House) in which the Reporter asked Sorensen whether Adlai Stevenson was a "great statesman." Sorensen replied: "The first requisite of a great statesman is to get elected." Some Republican Senators do not need to be reminded of that and it only takes a few.
Yes but Harry Reid and McConnell very carefully limited it to Courts. Trumps wishes to the contrary, the Sec Def is not a Court. And the defeat of Rick Scott for Majority Leader is a part of this piece. And there are already Republican Senators who have carefully refrained from supporting some of the nominees under evasive wordings like "We look forward to seeing their credentials"
Did you mean to strike the word cowardice but leave the strike-through for us to read? If so, why? In any event, why the change of heart. You were correct with your initial word choice.
Yes--to make exactly the point that appears to have been made. :-)
Bravo! Well played!
I am not aware of the presidential power to adjourn Congress in the case of a disagreement ever being used though we never had a felon that was subject to multiple indictments elected before either.
While everyone is criticizing the Democrats for all their faults, the cowardice of Republicans is something to remember.
I kept hoping Obama would use this before the Dem Senate did away with the filibuster for nominations (except SCOTUS, which McC killed for Gorsuch).
Great article, very informative. Thank you, SV!
Trump's proposed scheme is clearly unconstitutional. He's essentially proposing that the Senate delegate its advice and consent function to the president. Nothing about that scheme is consistent with our Constitution. Even the proposal violates the president's oath and duties. Trump must "faithfully execute the Office of President of the United States" and "to the best of" his "Ability, preserve, protect and defend the Constitution of the United States." Specifically, he "shall take Care that the Laws be faithfully executed." Article VI emphasized that "the supreme Law of the Land" starts with our "Constitution."
Article VI requires all Senators to support (swear to support) our Constitution, and they in fact all necessarily swore to support and defend our Constitution, not Trump. Article I assigned to the Senate the duty to adjudicate impeachments and, essentially, to also adjudicate certain nominations. Senators have no power to ignore (knowingly violate) their assigned duties. To use the language of Trump v. United States, they have no power to violate their "core constitutional" duties for the mere convenience of the president. They are public servants, not Trump servants.
In a dissenting opinion in Gundy v. United States, 588 U.S. 128 (2019), Justices Gorsuch and Thomas and Chief Justice Roberts emphasized that “the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice” about when and where “to vest” any “power” in any part of federal government. That is de facto and de jure exactly why the first sentences of Articles I, II and III expressly emphasize the “Powers” or “Power” that the people “vested in” the House of Representatives, the Senate, the President and courts.
“And,” the Gundy dissenters added, “the separation of powers” is “about safeguarding a structure designed to protect” not only the sovereign people and “their liberties” as a collective, but also “minority rights, fair notice, and the rule of law.” They continued:
Our founding document begins by declaring that “We the People [did] ordain and establish this Constitution.” At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest [parts of] the authority [of the sovereign people] to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies.
In a dissenting opinion in Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787 (2015), Chief Justice Roberts and Justices Scalia, Thomas and Alito emphasized that the majority opinion had emphasized that the “animating principle” (the primary purpose) of our entire Constitution was to secure “popular sovereignty” (the sovereignty of the people over all public servants). Then, the dissenters, themselves, emphasized that “the ratification of the Constitution was the ultimate act of popular sovereignty, and the people who ratified” it “did so knowing that it assigned authority to ‘the Legislature’ as a representative body” (to represent the sovereign people).
The Senate's assigned duties include reviewing the president's choices for certain of our public servants. As you emphasized, Professor Vladeck, their duties are especially powerfully compelled with respect to “judges,” who if they “behave properly, will be secured in their places” after they are appointed. The Federalist No. 79 (Hamilton).
Trump's scheme calls to mind much of Marbury v. Madison. Even if employees of all three branches of government conspire to violate the Constitution, they cannot make knowing violations of our Constitution constitutional.
"Another fine mess" - only wish it were a laurel and hardy flick
Would the principle that " a government official cannot do indirectly what she is barred
from doing directly," Nat'l Rifle Assoc. v. Vullo (U.S. 2024, slip op. 11), apply to Trump's reliance on, or abuse of, recess appointments to evade the usual Senate review under the Appointments Clause?
> Thus, under Noel Canning, so long as the Senate recesses for at least 10 days, then the President may use the Recess Appointments Clause to fill vacancies—whether those vacancies arose during that recess or earlier.
You didn't mention Scalia's concurrence. He (and the other conservatives) would have required that the vacancy arise during, but not before, the recess.
Not only is Scalia's interpretation is the more straightforward reading of the text — "Vacancies that may happen *during* the Recess of the Senate" — but it makes practical historical sense as well. If a vacancy arose before recess, that means a previous session of the Senate had the opportunity to approve an appointment and did not. So the Appointments Clause should control, not the Recess Appointment Clause.
I'd be interested to see how the current Court rules on this question if it comes up. It seems like the sort of case that could produce a strange lineup
This is one of several issues that Professor Vladeck needs to revisit. If I read the Article correctly he seems to imply that a Recess Appointee would remain in office until the next election. That is correct, if but only if the Senate remains in session ----actual OR proforma ---thought out the two year term. That gets hard to do and Professor Vladeck should at least point that out.. Also, the count of Recess appointed Justices is off. Holmes was nominated by TR on 12/02 and confirmed 2 days later without objection. The practice of holding hearings did not start until Brandeis was nominated and did not become the normal practice until Frankfurter was nominated. Brandeis refused to appear and was narrowly confirmed. Frankfurter did appear and refused to answer any questions on grounds that the case might come before him. When Scalia refused to say whether Marbury v .Madison was good law that involved invoking the "Frankfurter Defense." Actually, since the issue of Jewish and Black Seats on the Court seems no longer in doubt, the Senate should consider avoiding hearings; they are terrible at it.
Thoughts on whether pro forma sessions would break the 10-day requirement?
Since Democrats control the Senate, could not the Senate stay in session continuously until the new Senate is sworn in?
Sure, but the issue is once Trump takes office, at which point Republicans will control the Senate.
Yes but the Democrats can Filibuster and there are probably 5 or 6 Republican Senators who would not go along with the Trump plan anyway because the margins in some of the Red States as well as the few red seats in Blue states are anorexic. There was a famous exchange between Ted Sorensen and a Reporter ( after Ted had left the White House) in which the Reporter asked Sorensen whether Adlai Stevenson was a "great statesman." Sorensen replied: "The first requisite of a great statesman is to get elected." Some Republican Senators do not need to be reminded of that and it only takes a few.
Dems under Reid used “nuclear option” to kill filibuster for lower court and other nominations. GOP killed it for Gorsuch in 2017.
Yes but Harry Reid and McConnell very carefully limited it to Courts. Trumps wishes to the contrary, the Sec Def is not a Court. And the defeat of Rick Scott for Majority Leader is a part of this piece. And there are already Republican Senators who have carefully refrained from supporting some of the nominees under evasive wordings like "We look forward to seeing their credentials"
I beg to differ. It was for all nominations EXCEPT SCOTUS. https://en.wikipedia.org/wiki/Nuclear_option
Link to info on Recess Appointments Clause that works: https://constitution.congress.gov/browse/essay/artII-S2-C3-1/ALDE_00001144/#:~:text=The%20Recess%20Appointments%20Clause%2C%20authorizing,and%20scope%20of%20its%20terms.