The Senate Can Thwart Trump's Power Grab to Install His Cabinet During a Recess
It can simply stay in session and fulfill its constitutional obligations without feeling obliged to rubber stamp his ridiculous picks
Since his election victory, Trump has announced a barrage of executive branch nominees outlandish enough to face hurdles even in the Republican-controlled Senate: Scandal-plagued (and widely loathed on Capitol Hill) Fla. Rep. Matt Gaetz for attorney general; Putin-friendly, Dem-turned-MAGA ex-Hawaii Rep. Tulsi Gabbard for director of national intelligence; the co-host of Fox & Friends for secretary of defense; TV huckster Dr. Oz to run Medicare and Medicaid; certifiable lunatic Robert F. Kennedy Jr. for health secretary. If anybody expected a post-election Trump to offer an olive branch to “establishment” or more “normal” Republicans, they were mistaken. This is not an “adults in the room” team coming together.
No small part of it seems to be Trump daring the Senate to defy him, craving confrontation even if it’s with members of his own party. Of course, there’s only so much beating up on Democrats you can do when they’re completely locked out of power. But apparently, unified control of the presidency, Congress, and the judiciary is not enough. He is also demanding that the Senate adjourn to allow for the little-used power of recess appointments, bypassing the usual Senate confirmation process.
What’s even more concerning is the theory that Trump, with the assistance of the House, could force an adjournment even if the Senate refuses. It is based on an obscure provision of the Constitution, covering a few minor details about the relationship between the president and Congress, such as recommending legislation and providing regular information on “the State of the Union.” But this interpretation of the president’s power would be deeply mistaken and yet another “coup in search of a legal theory.”
Disagreeing about Disagreement
The relevant language from the Constitution’s Article II, Section 3 is: “…in Case of Disagreement between [the House and Senate], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper.”
The presidential power of adjourning Congress has never been used. There are no precedents and scant commentary about what it means or exactly what triggers it. But now, there is credible consideration of the idea being discussed as part of Trump’s demand for an adjournment to let him use recess appointments. It wouldn’t be the first time the issue has come up, as Trump briefly floated it during his first term, and Speaker Mike Johnson has refused to rule out possible support for the scheme.
It is important, then, for us to quickly get a handle on exactly what this obscure bit of constitutional text means and what it does, and doesn’t, allow the president to do.
The possibility is uncomfortably suggestive of one of the most firmly repudiated ideas in Anglo-American law, the attempt by Charles I to rule without Parliament. That did not end well, to put it mildly, for either side of the dispute or for the nation as a whole. It was an example the Framers of the Constitution were very aware of and consciously sought to avoid by explicitly constraining the chief executive’s power to interfere with the legislature.
As Ed Whelan explains in National Review, the basic outline of the idea is as follows: the House (presumably more amenable, though that’s far from certain with a razor-thin Republican majority) would pass a concurrent resolution adjourning Congress, which is the normal procedure. The Senate would not concur. Trump could then cite this as the two chambers being in “disagreement,” and adjourn them to whenever he wants. To allow for recess appointments would require an adjournment of at least 10 days. But in theory it could extend nearly an entire year, until the next constitutionally mandated annual convening of Congress on January 3, 2026, per the 20th Amendment.
Would this scenario actually be a “disagreement … with respect to the time of adjournment” as contemplated by the Constitution? It would appear to be so as a practical matter—but I would contend not as a formal procedural posture. In short, the House passing an adjournment resolution while the Senate simply takes no action would not be a disagreement between them.
Disagreement requires conflicting action on the part of both the House and the Senate. They must each pass adjournment resolutions, specifying different proposed dates. This is both a fairer reading of the clause’s plain language and a necessary construction to avoid absurd results. In practice, this means the Senate can prevent a presidential adjournment by not taking any action to officially disagree with the House.
Even in the normal course of business, the two chambers do not act simultaneously. Between an adjournment resolution passing one chamber, some time elapses … minutes, hours, days … before the other chamber can concur. If mere non-action suffices to create a “disagreement,” then the president could intervene during this window any time Congress adjourns. This was plainly not the intent, nor would it be a reasonable definition of the word “disagreement.”
A disagreement only occurs when one chamber actually expresses its disagreement with the other. This requires action, not simply inaction. It means adopting a conflicting adjournment resolution of its own. Or at the very least, to take a floor vote and affirmatively reject the proposed adjournment resolution, which the Senate has no obligation to do. Until then, the Senate might still agree with the House and has not said otherwise. While the political reality might be apparent, no formal mechanism of disagreement would have been triggered.
A Defiant Senate?
More to the point, what happens if the Senate rejects a claimed adjournment? This could be on the meaning of “disagreement,” or on another theory. One plausible reading suggested by my Cato colleague, Thomas Berry, would be that presidential adjournment only applies to rare special sessions called by the president. There are other possible interpretations that get to the same bottom line: that the House and the president cannot force the Senate to adjourn against its will.
At this point, the correct course of action would be for the Senate to simply continue to meet at its previously appointed times and conduct business. A majority would still constitute a quorum. If the president’s proclamation of adjournment is null and void, there is no way for the Senate to assert that position other than treating it as a nullity, an act with no more force than if you or I tried to adjourn Congress.
This scenario would be well into a full-blown constitutional crisis, to be sure, featuring a Senate whose very existence is denied by the president and the House. Vice President Vance, as president of the Senate, could show up in person at the Capitol and repeat the position that the body is adjourned. However, this quickly becomes a rather absurd contradiction: if the Senate is not in session, there is nothing for the vice president to preside over. Claiming the gavel would be conceding the point. And if he declines to claim his constitutional power to preside, the job would pass per the normal rules of the Senate to the president pro tempore or their designee.
All of this so far offers little opportunity for direct judicial intervention, any clear path for anybody with standing to present a justiciable case. But since the whole goal of the exercise would be for Trump to make recess appointments to the executive branch, this would squarely tee up a challenge in line with NLRB v. Canning to the legitimacy of those appointments by anybody affected by their purported actions. And though Canning was not directly about the presidential adjournment power, it does stand for the general proposition that the Senate is in session when the Senate says it is in session. This follows from the fact that each house has the power to determine the rules of its proceedings, including deciding disputes over those rules. If the court were to either reject or validate the claimed recess appointments, that would effectively decide the underlying issue.
All this may well be moot, and we can certainly hope it remains theoretical. The White House could back away from the idea of trying to adjourn Congress. As few as two or three Republican defectors in the House could deny the needed majority there, so there would be no basis to claim disagreement between the houses. The Senate may proceed to confirm most if not all of Trump’s Cabinet nominees, with the demand for recess appointments falling by the wayside as a consequence. Or the Senate could hold firm and reject nominees, defending its constitutional prerogative.
But if the presidential adjournment power is invoked, it should be recognized as not just a serious, norm-defying abuse of a procedurally valid constitutional power. Instead, it would be unconstitutional. The Senate would have firm grounds to ignore it, and the Supreme Court would be right to agree.
An earlier version of this article first appeared on Cato Institute’s Cato at Liberty blog.
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It is unfair to RFK Jr, that "certified lunatic" is applied to him alone.
What I find amazing in all of this is that keeping the Congress "In session" through pro forma procedures is what is not normative. So here we find ourselves defending a non-normative procedure to prevent a constitutionally normative procedure from taking place.
The "no recess recess" is the perversion not the abuse of recess appointment powers which can be fought under normal judicial review.
Under the current Senate practice there is no way for a President to actually appoint someone even when the vacancy happens during a de facto recess and the vacancy NEEDS to be filled.
The grounds to fight this is to follow Scalia's reasoning that recess appointments apply only to vacancies that occur during a recess. Such a ruling would quash the gamesmanship denying executive abuse of the appointment power and the Senate institutionalizing the current practice of the "no recess recess."