Last Monday, we discussed this as a possible topic for the next meeting on 25 November. As it happens, a couple of recent E-Mail messages from Richard Cohen addressed this topic. Rick is a retired New Jersey state appellate court judge who now lives on MDI and has led numerous Acadia Senior College classes on Contitutional issues.
Rick’s most recent E-Mail messages dealt with the legal basis for recess appointments.
Here’s the text of the first of those E-Mail messages:
Dear All,
Two short ones today. [I’ve omitted the first part of the E-Mail message, which deals with an unrelated issue.]
The other quickie for today is the matter of recess appointments. Ordinarily the scheduling of legislative recesses is up to the houses of Congress (possibly their favorite subject), and rarely presents problems resulting from disagreements. The media speculate, probably accurately, that the new administration is going to try to seat its controversial appointees without hazarding the Senate’s advice and consent process, by making recess appointments. Recess appointments are good until the end of the current congressional session. So, if Trump makes recess appointments on January 20, 2025, they are good until January 3, 2027.
Aticle I, Sec. 5, of the Constitution says, “Neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, . . .” I’m not sure what evil that provision was intended to avoid, but both houses have adopted the dodge of leaving town for more than three days, leaving a junior member to show up in the Capitol in the morning to open a work day, all by himself, noting a lack of a forum, moving to adjourn for two days, and presumably voting for his own motion. All this has been taken traditionally to avoid the Sec. 5 recess provision.
But wait, there’s more! Article II, Sec. 3, describes a few of the powers of the president. It includes the following unfamiliar provision: “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; . . .” If these two clauses are connected, then they apply only to an extraordinary session called by the president. However, I am afraid this word salad may be held to cover two independent subjects, and will be read to say that, if one of the houses wants to adjourn and the other does not, the president can adjourn them both for as long as he “thinks proper”. The GOP will control both houses after January 3, so, if one of them decides to adjourn and the other says no (and that can certainly be arranged in the offices of Project 2025), Trump will, on January 20, adjourn them both “sine die”, and then appoint everybody.
I haven’t yet done any real study of this provision, either textually or historically, but neither has anyone else I have access electronic to. So keep tuned. This could be major litigation that lands in SCOTUS. It could be a “political question” that the Court won’t touch with a long stick. It could result in a presidential clown car with padded walls.
Rick
And here’s a follow-up from Rick:
After sending the email a few minutes ago, I found the following:
https://constitution.congress.gov/browse/essay/artII-S2-C3-1/ALDE_00001144/
It does not sound promising at all.
Rick
Of course, Rick’s discussion doesn’t address the politics affecting the Senate’s decision about whether to allow recess appointments, or whether Trump will appoint some of his nominees as “acting”, in order to avoid the political uncertainties of the Senate confirmation process and the political and legal uncertainties of recess appointments. “Acting” appointments, however, raise other uncertainties, including the extent of an acting appointee’s decision-making authority.
Unfortunately, I won’t be able to join next Monday’s meeting since I have a long-standing prior committment.