Could President Trump Recess Appoint His Entire Cabinet Under Justice Scalia’s Noel Canning Concurrence?

Ed Whelan writes that President Trump could adjourn Congress as a way to immediately verify his total cupboard with none affirmation hearings. In an earlier put up, Ed writes that this strategy could danger the Court docket overruling Justice Breyer’s Noel Canning majority opinion, and adopting Justice Scalia’s concurrence.

I preserve that Justice Scalia’s opinion is right on originalist grounds, as I famous in my earlier put up. And I’d be pleased to see Justice Breyer’s majority opinion repudiated. Besides, is that this potential plan inconsistent with Justice Scalia’s concurrence?

Beneath Scalia’s opinion, the President might solely fill a emptiness that arises throughout the recess of the Senate. Trump’s plan would solely be possible if these cupboard positions change into vacant throughout the recess of the Senate. Presumably, the holdover Biden cupboard officers will probably be lengthy gone on January 20. And, on January 20, I believe the President will use the Vacancies Reform Act to element pleasant individuals already within the federal authorities to function performing cupboard officers. What if considered one of them had been to resign throughout the presidentially-induced recess? That’s, on January 21, Trump adjourns Congress, and all performing cupboard officers resign. Would these vacancies have arisen throughout the recess of the Senate? Or, would the related place to begin be when the last-confirmed official resigned? I do not understand how the Recess Appointments Clause, as understood by Scalia, interacts with the Vacancies Reform Act. I doubt anybody has given this challenge a lot thought.

There’s a second challenge. Beneath Justice Scalia’s majority opinion, the President can solely make a recess appointment throughout an inter-session recess, and never throughout an intra-session recess. That’s, the President could make a recess appointment throughout the recess between periods, and never throughout the recess in the midst of a session. Would a presidential-induced recess be an inter-session recess or an intra-session recess? This energy has by no means been exercised earlier than, so there isn’t a precedent.

I had all the time thought this clause would trigger an inter-session recess. On the Framing, intra-session recesses had been very uncommon. Usually, Congress would meet for steady durations, taking solely brief breaks, after which take very lengthy inter-session breaks. To the extent this energy was extra doubtless for use, it might be used to determine when to conclude one session, and start one other. However I do not know. I do assume it’s the case that this clause was not designed to set off the President’s recess appointment energy. However that could be a separate query from what sort of recess this energy would set off.

Those that joined the Noel Canning majority could very quickly remorse their alternative.