Even the Roberts Court would repudiate Trump’s recess appointment scheme

President-elect Donald Trump’s latest gambit is likely to confront a problem that is unusual for him. The Supreme Court, dominated by usually-pliant conservatives, will balk — at least if they still have any senses of decency and consistency remaining.

Trump is threatening to pack his Cabinet with candidates who may not be able to survive the Senate’s role to decide whether to “advise and consent” when presented with nominees by the president. This Senate power is an essential element of the Constitution’s system of checks and balances.

Despite the facile arguments that a president is “entitled” to have the Cabinet secretaries and other senior officials of his own choosing, the Constitution rejects that notion of unbridled presidential discretion in staffing the executive branch. Article II establishes a three-step pr o cess for picking the senior government officers. The president nominates candidates; then the Senate exercises its power to advise and to decide whether to consent to the candidate’s selection; and then, only if the Senate consents, may the president appoint the nominee.

Following his announced platform of taking a wrecking ball to the national government, Trump has deliberately nominated a coterie of Cabinet-level candidates who are causing Democrats to gag and Republicans to cast down their eyes in embarrassment.

Trump has a team of legal enablers who have searched the Constitution for pretexts to assert extraordinary powers without the annoyance of interference from others. One clause that they have pointed out to the returning president is his authority to ma k e “recess” appointments.

Crafted at the end of the 18th century, when Congress was expected to meet in session only briefly, and when getting to and from the nation’s capital (wherever it turned out to be) was arduous and time-consuming, the Constitution gives the president the power to fill vacancies, on an interim basis lasting through the end of the next session, when the Senate is in “recess.”

Trump’s threatened gambit: Either induce the Senate to recess or force Congress to adjourn, and then use his power to make recess appointments.

Before Republican senators chose Sen. John Thune (R-S.D.) as their new leader, Trump was demanding that each candidate for the job commit to cooperate in his scheme to manufacture an artificial “recess” for the sole purpose of having the Senate abdicate one of its key constitutional powers. Demonstrating Trump’s stranglehold on any Republican who hopes for political advancement, Thune dutifully committed at least to consider such voluntary emasculation of the Senate.

The problem with this kind of complicity between the incoming president and the new GOP Senate is that the system of checks and balances creates a crucial protective role for the third branch, the Supreme Court. That is where the scheme, if pursued, will — or at least should — crumble.

Other presidents have had many occasions to make recess appointments, but the circumstances in which a president claimed the right to use this constitutional loophole have varied. What kind of recess is sufficient to trigger this exceptional authority?

The issue eventually reached the Supreme Court 10 years ago in a case called NLRB v. Noel Canning. President Barrack Obama had taken advantage of a routine three-day weekend “recess” of the Senate to appoint three members to the National Labor Relations Board. An employer challenged a ruling that depended on the validity of those members' appointments.

The Supreme Court decided unanimously that a three-day suspension of business did not satisfy the Constitution’s predicate for a recess appointment. The appointments were found invalid and their plurality decision discarded.

Much has been made lately of the comment in the opinion by Justice Stephen Breyer that a 10-day recess might be long enough to allow this kind of extraordinary appointment. But too little attention has been paid to the separate opinion filed by Justice Antonin Scalia, which was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.

Roberts, Thomas and Alito are still on the court. Although Scalia passed away in 2016, the three conservative justices appointed since Canning — Neil Gorsuch, Brett Kavanagh and Amy Coney Barret — are jurisprudential disciples of Scalia. Thus, it is reasonable to assume that they would join in sustaining Scalia’s approach, to which Roberts, Thomas and Alito already have subscribed.

Scalia’s opinion was scathing in dismissing the notion that even a 10-day “recess” would be constitutionally sufficient to enable a president to make a major appointment without Senate advice and consent. Rather, emphasizing the Framers’ view of the importance of the Senate’s role in executive appointments, and relying on the originalist interpretation of the constitutional clause, Scalia insisted that the exceptional power applies only between the formal, annual sessions of Congress, when the body is effectively adjourned.

As Scalia summarized this view: “In the founding era, the terms ‘recess’ and ‘session’ had well-understood meanings in the marking-out of legislative time. The life of each elected Congress typically consisted (as it still does) of two or more formal sessions separated by adjournments ‘sine die,’ that is, without a specified return date. … The period between two sessions was known as ‘the recess.’”

Any other conclusion, Scalia, explained, would improperly allow “the continuing aggrandizement of the Executive Branch.”

Thus, unless the Roberts Court majority engages in transparently result-oriented contortions to indulge Trump’s constitutional usurpation, whether with or without Senate acquiescence, Trump’s nominees will have to submit themselves to the judgement of the Senate. Otherwise, any attempt to make “recess” appointments will be doomed.

Unless, of course, that is the hidden agenda. What better way to sow chaos in the “deep state” than to roil Cabinet departments with impotent leaders?

Philip Allen Lacovara was formerly counsel to the Watergate Special Prosecutor, deputy solicitor general of the United Sates and president of the District of Columbia Bar.