Recess Appointments
Trump looked to exploit the power of the presidency to make recess appointments, which the Constitution allows for when Congress is not in session, effectively bypassing any confirmation process. Thomas G. Moukawsher in a Newsweek op-ed noted that "When the House and Senate can't agree on a time to adjourn Congress, the president may adjourn them to a date he picks. So, to hobble the Senate, Trump could ask the House to propose an immediate adjournment. If the Senate disagrees, Trump may adjourn both Houses and appoint whomever he pleases." Trump withheld his endorsement of a Republican Senate Majority leader, conditioning his support on the senators' backing his plan to use recess appointments. Ultimately, all three candidates – Florida Senator Rick Scott, South Dakota Senator John Thune and Texas Senator John Cornyn – said they would consider recess appointments.
As the head of "Project 2025", Paul Dance, notes , the main goal of the document is to develop a "guide" for the first 180 days of the new president in office and "to gather an army of united, tested, trained and trained conservatives [...] to destroy the 'administrative state'" (or "deep state" — according to the conspiracy theory, there are allegedly influential officials who carry out the shadow administration of the USA and undermine Trump's authority).
These "cohesive and proven conservatives" should lead the main federal agencies and eradicate "leftist ideology" from them. This includes, in particular, the Department of Justice and all of its law enforcement units, such as the FBI. Candidates for this job will be evaluated by "coalition members" of Republican experts. Those they choose must be approved by the president — who, according to the "Project 2025" strategy, should receive broader powers for such appointments, and according to Stewart Baker, a lawyer and one of the co-authors of "Project 2025," Trump will certainly "seek this":
"He feels that a lot of what he wanted to do (during his first term — ed.) was thwarted by members of the executive branch of government who were either career officials or were not the ones he would want to elect. And so he will determine a different set of political appointees. Whether it will succeed, I think, is an open question. Not all laws are on Trump's side."
Article II, Section 2, Clause 3 provides : "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." Recent presidents have used recess appointments, with Clinton making 139 appointments, George W. Bush making 171 and Obama making 32.
The Recess Appointments Clause, authorizing the President to make temporary appointments when the Senate is not in session, was adopted by the Constitutional Convention without dissent and without debate regarding the intent and scope of its terms. In the Federalist No. 67, Alexander Hamilton refers to the recess appointment power as nothing more than a supplement . . . for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. It is generally accepted that the Clause was designed to enable the President to ensure the unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. In addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political purposes, appointing officials who might have difficulty securing Senate confirmation.
Two fundamental textual issues arise when interpreting the Recess Appointments Clause. The first is the meaning of the phrase the Recess of the Senate. The Senate may recess both between and during its annual sessions, but the time period during which the President may make a recess appointment is not clearly answered by the text of the Constitution. The second fundamental textual issue is what constitutes a vacancy that may happen during the recess of the Senate. If the words may happen are interpreted to refer only to vacancies that arise during a recess, then the President would lack authority to make a recess appointment to a vacancy that existed before the recess began. For over two centuries the Supreme Court did not address either of these issues, leaving it to the lower courts and other branches of government to interpret the scope of the Recess Appointments Clause.
The Supreme Court ultimately adopted a relatively broad interpretation of the Clause in National Labor Relations Board v. Noel Canning. With respect to the meaning of the phrase Recess of the Senate, the Court concluded that the phrase applied to both inter-session recesses and intra-session recesses. In so holding, the Court, found the text of the Constitution ambiguous.
More specifically, the Court found nothing in dictionary definitions or common usage contemporaneous to the Constitution that would suggest that an intra-session recess was not a recess. The Court noted that, while the phrase the Recess might suggest limiting recess appointments to the single break between sessions of Congress, the word the can also be used generically or universally, see, e.g., U.S. Const. art. I, § 3, cl. 5 (directing the Senate to choose a President pro tempore in the Absence of the Vice-President), and that there were examples of the Recess being used in the broader manner at the time of the founding. Noel Canning, 573 U.S. at 526–29.
The Court relied on (1) a pragmatic interpretation of the Clause that would allow the President to ensure the continued functioning of the federal government when the Senate is away, and (2) long settled and established [historical] practice of the President making intra-session recess appointments. The Court noted that Presidents have made thousands of intra-session recess appointments and that presidential legal advisors had been nearly unanimous in determining that the clause allowed these appointments.
The Court declined, however, to say how long a recess must be to fall within the Clause, instead holding that historical practice counseled that a recess of more than three days but less than ten days is presumptively too short to trigger the President’s appointment power under the Clause. With respect to the phrase may happen, the majority, again finding ambiguity in the text of the Clause, held that the Clause applied both to vacancies that first come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess. In so holding, the Court again relied on both pragmatic concerns11 and historical practice.
Even under a broad interpretation of the Recess Appointments Clause, the Senate may limit the ability to make recess appointments by exercising its procedural prerogatives. The Court in Noel Canning held that, for the purposes of the Recess Appointments Clause, the Senate is in session when the Senate says it is, provided that, under its own rules, it retains the capacity to transact Senate business.
In the context of Noel Canning, the Court held that the Senate was in session even during a pro forma session, a brief meeting of the Senate, often lasting minutes, in which no legislative business is conducted. Id. at 554–56. Because the Journal of the Senate (and the Congressional Record) declared the Senate in session during those periods, and because the Senate could, under its rules, have conducted business under unanimous consent (a quorum being presumed), the Court concluded that the Senate was indeed in session. In so holding, the Court deferred to the authority of Congress to determine the Rules of its Proceedings, see U.S. Const. art. I, § 5, cl. 2, relying on previous case law in which the Court refused to question the validity of a congressional record. Noel Canning, 573 U.S. at 555 (citing United States v. Ballin, 144 U.S. 1, 5 (1892)).
In this vein, Noel Canning provides the Senate with the means to prevent recess appointments by a President who attempts to employ the subsidiary method for appointing officers of the United States (i.e., recess appointments) to avoid the norm14 for appointment (i.e., appointment pursuant to the Article II, Section 2, Clause 2).
The Federal Vacancies Reform Act of 1998 (FVRA) establishes the procedures for temporarily filling vacant executive agency positions that require presidential appointment with Senate confirmation (PAS positions). The act specifies who may serve in an acting capacity, the duration of such service, and the consequences of non-compliance. An individual nominated to a vacant PAS position generally may not serve as the acting officer for that position while the nomination is pending, unless they meet specific criteria, such as having served as the first assistant for at least 90 days in the year preceding the vacancy.
The duration an acting officer may serve is limited to 210 days from the date the vacancy occurs. If a nomination is submitted to the Senate, the acting officer may serve while the nomination is pending. If the nomination is rejected, withdrawn, or returned, the acting officer may serve for an additional 210 days. Actions taken by individuals serving in violation of the FVRA are without legal effect.
Discussions have arisen regarding the potential use of the FVRA to appoint individuals to key positions without immediate Senate confirmation. For instance, there have been claims about appointing individuals like Matt Gaetz as Attorney General under the FVRA. However, legal experts assert that the FVRA cannot be used to bypass the Senate confirmation process for such appointments.
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