Thursday, August 3, 2017

Senate Blocks President Trump from Making Recess Appointments

The Hill reports that Senator Lisa Murkowski (R-Alaska) set nine pro forma sessions for the Senate over the August recess. The move means that the body will be in session every three days, even if only very briefly (just to gavel in, then immediately gavel out), so that it won't formally adjourn for the recess. Without an adjournment (more particularly, without formally going into a "recess"), President Trump can't use his recess appointment power.

Senate Republicans effectively used this tactic to frustrate President Obama's efforts to fill key executive slots. In 2014, the Supreme Court sided with the Senate on the practice in NLRB v. Noel Canning. The Court in that case held as a general matter that the Senate is in session when it says it is, and it's not when it says it's not. In particular, it held that a Senate schedule with a pro forma session every three days does not constitute a "recess" under the Recess Appointments Clause (unless the Senate says so). So when the Senate sets an every-three-day pro forma schedule over the August "recess," it similarly isn't in "recess" under the Recess Appointments Clause. And President Trump therefore can't make recess appointments.

Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink


Two thoughts --

The TV news last night showed Mitch McConnell, not Lisa M., announcing this. I would have guessed the only the majority leader could do this, and I thought this meant the Republicans were starting to get some backbone.

Seeing Lisa M.'s name here brought to my mind the old saying 'hell hath no fury as a woman scorned.'

Posted by: eli bortman | Aug 4, 2017 2:56:59 AM

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