President-elect Donald Trump will likely get away with recess appointments if he pursues them, although such a move would require a Congress willing to undermine its own power, constitutional law experts told Newsweek.
Trump has faced considerable pushback on several of his more controversial nominees for top Cabinet positions, with former Florida Representative Matt Gaetz already withdrawing his name from consideration for Attorney General after it became clear his colleagues in the Senate would not confirm him.
Gaetz has been the center of a probe into alleged sexual misconduct such as recruiting women online for sex, including at least one 17-year-old girl.
Other nominees, such as Pete Hegseth, Trump's pick for secretary of defense, and Robert F. Kennedy Jr., Trump's pick for secretary of health and human services, each have faced backlash over their own controversies, ranging from sexual assault allegations against Hegseth to RFK's platforming of vaccine conspiracy theories.
To sidestep these issues, Trump has 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.
Retired judge and author Thomas G. Moukawsher in a Newsweek op-ed published earlier this week laid out the mechanism of these appointments, writing: "When the Senate isn't in session the Constitution allows the president to make "recess appointments" to ensure the government can continue functioning. So, Trump plans to engineer a recess. If the Senate agrees, Trump is all set. But if it doesn't, he may have another trick up his sleeve."
"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."
Previous presidents have used recess appointments, with President Bill Clinton making 139 appointments, President George W. Bush making 171 and President Barack Obama making 32, according to a tally from The New York Times. But none of these presidents used the method Trump is said to be considering.
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.
Thune ultimately won the contest, upsetting many of Trump's biggest supporters and allies who had publicly backed Scott to take the post.
Critics of the recess appointment plan point to a previous Supreme Court ruling – National Labor Relations Board v. Noel Canning et al. The Court ruled unanimously in that 2014 landmark case to limit the president's power to make recess appointments, unless the Senate is in recess of "sufficient length."
Moukawsher raised this point in his op-ed, arguing: "Today, the views expressed in the Obama case by four conservative justices may matter more. They wrote separately to assail the use of recess appointments as a means of circumventing Senate confirmation."
The late Justice Antonin Scalia had written a scathing criticism of the practice, labeling it as an unconstitutional threat to the core checks and balances preserving democracy, and arguing on behalf of Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito – the latter three of whom remain on the bench – that such appointments should only last the duration of the recess, and that only vacancies that occur during the recess should be filled.
Newsweek reached out by email to Senate Majority Leader-elect John Thune and House Speaker Mike Johnson by email for comment.
Yale Law professor Bruce Ackerman, a constitutional law expert, told Newsweek that the Court had "unanimously declared" the practice of recess appointments unconstitutional, highlighting the strong opposition from Republican-appointed justices.
"They were the sort of beacons of extreme conservative thought on the Supreme Court with John Roberts, plus Kagan and Sotomayor," Ackerman said. "They would have to repudiate their own opinion, which they are not going to do."
Ackerman said that going against the decision of NLRB v. Canning would "damage their credibility, which already is vulnerable given Dobbs, so it's extremely unlikely that there will be a clear majority." He acknowledged that Trump could simply "refuse to obey" the Court, but that would "generate a profound constitutional crisis."
Ackerman noted that the Canning ruling focused also on the duration of the recess to qualify for the president to utilize recess appointments, with a suggested length of at least 10 days. That would put Congress in a vulnerable position if both leaders agreed to go along with Trump's plan and allow him to adjourn both houses of Congress and bypass Senate confirmation altogether.
"We have two wars going on," Ackerman said. "We have deep dilemmas at the border ... we have the fact that if Congress doesn't enact budgets, the entire government shuts down. Given these three realities – wars, budget and border – and Trump wanting to gain congressional authority on the border in various ways, and so forth, he cannot afford a government shutdown."
"We actually have to have a budget for the fiscal year which ends on for 2024, we need another budget for 2025, and it is inconsistent with Trump's effective actions on the border and in the wars, and also in his efforts to have a new tax bill," Ackerman said. "He can't afford to have an extended recess."
However, Stanford Law's Bernadette Meyler, an expert in constitutional history and constitutional law, told Newsweek that the Court has changed significantly since the Canning decision a decade ago, and that the current bench "is more inclined to actually just overrule past precedent rather than ... just extending it or distinguishing it."
Meyler pointed to Dobbs, in which the Court argued that Roe v. Wade "was wrong when it was decided, so, instead of saying circumstances have changed, or we see the facts on the ground differently, just said, 'no, the case was wrong when it was decided.'"
"I would say that the Court is fairly willing to overturn precedent, especially if their argument is that they're not grounded in constitutional meaning," Meyler said.
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