At Volokh Conspiracy, Josh Blackman comments on President Trump’s suggestion that he might adjourn Congress as a way of filing vacancies for which the Senate has not confirmed a nominee.

President Trump said he could adjourn Congress as a means to make recess appointments.

“If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers of Congress.”

He also referred to pro forma sessions as “phony” and a “scam.” I suspect President Obama would agree with him on this point at least.

Article II, Section 3 provides:

[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper

No President has ever used the adjournment power–certainly not to make recess appointments. But this idea is not novel. Justice Scalia [and Justice Breyer] flagged it in NLRB v. Noel Canning (2014).

I want to clarify that from an originalist perspective, in my view (and in Justice Scalia’s view) the President absolutely cannot adjourn Congress as a way to make recess appointments for existing vacancies.  The President’s recess appointments power (Art. II, Sec. 2) is only “to fill up all Vacancies that may happen during the recess of the Senate.”

Concurring in Noel Canning, Justice Scalia argued that vacancies that “happen” during the recess are only vacancies that arise during the recess, not vacancies that arise during the session and continue into the recess.  I agree — in fact, a colleague and I filed an amicus brief in Noel Canning making this argument, which Justice Scalia unfortunately did not cite.  The originalist argument is quite strong, and I was honored that a number of prominent originalist scholars (including co-blogger and pre-eminent recess appointments scholar Mike Rappaport) joined our brief.

Regrettably, Justice Breyer’s majority opinion (which did cite our brief — to disagree with it!) took a different view, thus opening the door to President Trump’s argument.  But I don’t think we should regard the question as settled by Noel Canning.  As Professor Blackman says, that case did not involve the President creating a recess so that he could fill existing vacancies. The central point of the Senate’s failure to fill an existing vacancy is that the Senate doesn’t want the vacancy filled.

This power not to fill is an important check on the President. Perhaps, one can say that if the Senate adjourns without filling a vacancy, it understands that it is giving the President the power to recess appoint.  And to avoid that result, the Senate can stay in session, using pro forma sessions as necessary.  So the check of the Senate’s power not to fill remains in effect.  (This is roughly what Justice Breyer said in Noel Canning.)

But if the President forces an adjournment to fill existing vacancies, that is manifestly a presidential end-run around the Senate’s power not to fill a vacancy.  The structural considerations are thus quite distinct from Noel Canning.  Even if one accepts the result in Noel Canning, it shouldn’t be extended to this entirely new situation.

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey

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