NRO contributor warns about permanent “evisceration of Senate's advice-and-consent role”

Ed Whelan describes a rumored plan to adjourn Congress and recess-appoint Trump's cabinet without Senate approval

Written by Media Matters Staff

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National Review legal contributor Ed Whelan posted on social media about a rumored plan for Donald Trump to exercise his authority under Article II, section 3 of the Constitution and force Congress to adjourn. As Whelan explained later in a blog for NRO, “Trump adjourns both the House and the Senate for ten days (or maybe two years)”:

Rep. Thomas Massie (R-KY) reportedly made remarks suggesting this would allow President-elect Trump to appoint Rep. Matt Gaetz (R-FL) as attorney general.

In 2020, Politico reported on Trump threatening a similar move:

President Donald Trump is threatening to invoke a never-before-used authority to push through dozens of executive-branch nominees while Congress remains out of Washington because of the coronavirus crisis.

The move would almost certainly set off a legal battle between the White House and Congress over the limits of presidential power.

Complaining that the Senate Democrats are using so-called “pro forma sessions” to prevent him from making recess appointments, Trump threatened to formally adjourn Congress and install his nominees without a vote. Those nominees could potentially serve through the end of 2021.

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Senators of both parties have traditionally been wary of recess appointments, seeing it as an infringement on the body’s power to approve executive branch nominees. Senate Majority Leader Mitch McConnell (R-Ky.) joined more than 40 other Republicans in a legal challenge to a trio of former President Barack Obama’s recess appointments to the National Labor Relations Board in 2012.

Republicans ended up winning that case after the Supreme Court ruled unanimously in 2014 that Obama had overstepped his authority. The Supreme Court said that only the Senate — not the president — can decide when it is in session.