Donald Trump attempted to downplay fears about his authoritarian impulses on the campaign trail by claiming that, if elected, he would “only” be a dictator on “day one.” There are nine weeks to go until the inauguration, but the president-elect appears to be getting an early start: On Sunday, Trump demanded that Senate Republicans give him unilateral authority to install the heads of federal agencies, from alleged sex trafficker Matt Gaetz at the Department of Justice to anti-vaxxer Robert F. Kennedy Jr. at the Department of Health and Human Services to Fox News talking head Pete Hegseth at the Department of Defense.
“Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments,” Trump posted as Senate Republicans prepared to elect a majority leader for the next Congress. (Yes, we’re back in the timeline where cockamamie plans from the executive branch are announced by tweet.) South Dakota Senator John Thune, who won election as majority leader, subsequently said that complying with Trump’s order is “on the table,” depending on whether Democrats “want to play ball or not.”
The Constitution gives presidents the power to nominate and appoint certain federal officials, but specifies that they must do so “by and with the advice and consent of the Senate”—in other words, a majority of the Senate has to approve. There is one exception, though: The Constitution permits the president to make temporary appointments without Senate approval when the Senate is not in session. This provision, known as the Recess Appointments Clause, aims to ensure that critical roles in the federal government don’t go unfilled when the Senate isn’t around to do its job. Trump is flipping that on its head, pressuring a Republican-controlled Senate to go into recess so that he can fill those roles without any oversight.
Trump’s insistence on recess appointments is a tell and a test. Trying to avoid the burden of earning the constitutionally-required buy-in from his allies in Congress shows the lengths to which he is committed to authoritarianism, and lets him assess the extent to which the other branches of government will submit to his whims. But Trump does not only need the capitulation of the Senate; for the scheme to work, several sitting Supreme Court justices would have to change their minds about the limits of the Recess Appointments Clause. Trump is yet again daring the rest of the government to choose him over the Constitution.
The leading Supreme Court case on the issue came a decade ago in National Labor Relations Board v. Canning. In February 2012, the NLRB determined that Noel Canning, a Pepsi distributor, had violated federal law by refusing to execute a collective bargaining agreement to which it had verbally agreed. Canning argued to the Court that the NLRB’s order should be set aside because three of its five members had been appointed illegally: In December 2011, the Senate held a series of brief, perfunctory “pro forma” sessions—sessions in which members conduct no real business, other than opening and closing the chamber so they could say they weren’t really in recess—in order to block President Barack Obama from making any recess appointments.
Finally, Obama decided to proceed anyway, and made the three appointments in question in between pro forma sessions held on January 3 and January 6. The Court unanimously sided with Canning, and ruled that a recess of less than 10 days is “presumptively too short” to trigger the president’s recess appointment powers.
But in a concurring opinion, Justice Antonin Scalia argued that the Court’s ruling didn’t go far enough. Scalia, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, said that a president’s recess appointment powers only become active if a position becomes vacant during the biennial gap between legislative sessions. The four conservatives argued that the Founders considered the Senate’s role in the confirmation process to be a “critical protection against despotism,” and derided the Clause as an anachronistic relic whose “only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process.” In other words, three conservative justices currently on the Court are on the record a mere ten years ago forcefully advocating against the exact kind of chicanery Donald Trump is pursuing now.
If Thune indeed rolls over and allows Trump to confirm Gaetz and company via recess appointment, people who are subjected to orders by those agencies might challenge their validity in court. The Court’s conservatives would then find themselves in an awkward position, trying to reconcile their recent statements that presidents can’t just use recess appointments if their trash nominees might not survive Senate confirmation hearings with their allegiance to a Republican president who wants to do precisely that.
Trump’s plan to install agency heads by fiat is a dangerous end-run around the Constitution and a troubling sign of despotism to come. Its immediate goal may be to secure a Cabinet full of cronies and incompetents. But it will also let the Trump administration assess how much other government actors are willing to disregard their stated principles going forward—or how prepared they are to bend the knee.
