Trump's attack on the constitution begins
Forced adjournment + recess appointments = constitutional crisis
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There are a million different ways in which the Founders saw Donald Trump coming. Many aspects of their conception of presidential leadership and of the constitution were designed to protect against lawlessness and demagoguery. Even though the constitution is a document which ought to always be evolving and changing - as was the view of most of the Founders themselves - it maintains some key, timeless features.
One of those is that it provides not, as is commonly understood, for a “separation of powers”, but rather for what Richard Neustadt famously called “separated institutions sharing power”. Many of the key things that the American government does require cooperation among different branches of government. Legislation, for instance, has to be passed by Congress, signed by the president, and subjected to judicial review by the courts. Requiring the cooperation of different branches of government, each jealous of their own authority, is one way of balancing ambition and power-hunger and preventing any one dominant center of power emerging. It is, as Neustadt also wrote, an “invitation to struggle”.
One example of this is the nomination process for political appointees in the executive branch. The president can’t just make whoever he wants the Secretary of Defense or the Attorney General. He has to get the consent of the Senate. This is the process of nomination and confirmation. The Founders wanted to make just one person responsible for nomination, because they figured that person would suffer reputational damage if they appointed an idiot or their son. But they also wanted confirmation by the Senate to serve as a check on a president who was out of control.
This brings us to Trump. Trump hasn’t attempted to appoint his son to anything yet, but he has nominated a lot of idiots. It’s no surprise, then, that he’s already complaining about the need to have them confirmed by the Senate. In fact, he’s so mad about it that he’s floated a constitutional nuclear option to try to get around the Senate altogether.
This nuclear option comes in the form of “recess appointments”, which are something of a constitutional loophole. Under the constitution, the president can make an emergency appointment to a position in the executive branch if the Senate is in recess. This clause was designed for the days when convening the Senate could take weeks or months, and the appointment is only supposed to last until the end of the next session of Congress. It was arguably also only supposed to apply to vacancies which open up during a recess, not in normal times (although the Supreme Court already shredded that part of the rule). Trump, however, seems to want to turn it into a wholesale method of appointment - the shortest and quickest way to get his Cabinet of Clowns.
The plot thickens even further. In the past, the Senate has avoided presidents making recess appointments by staying in a “pro forma session” - basically refusing to declare a recess, even though everybody has left town. But Trump’s lawyers are reportedly considering the drastic move of actually forcibly adjourning Congress, making the appointments, and then letting Congress reconvene. This would be a brazen power grab which has never been tried before in American history. As the constitutional scholar Michael B. Rappaport wrote decades ago, if the Framers had intended such a move to be constitutional, they would hardly have bothered to make the president’s appointment power subject to the Senate at all.
Executing the forced adjournment plan would require some co-conspirators. According to the constitution, the president can only adjourn Congress when there is some disagreement between its two houses about whether to go into recess or not. So Trump would have to get House Speaker Mike Johnson to call for a recess and then use that as an excuse to force the adjournment. It would be Trump and the more radical of two the branches ganging up to remove one of the final checks on the president’s power.
Whether the plan would work or not remains to be seen. The courts could ultimately have a say, as they did when Barack Obama tried to make some recess appointments. But this Supreme Court is even more favorable to executive power than it is to Donald Trump, and so it’s uncertain if it would be willing to rein the president in. The Senate could try various schemes to stymie Trump, and the appointed officials could even be impeached in the House. But all of these moves would require Republican politicians or GOP-aligned judges to decide to take the morally correct and courageous course of action. At a time when MAGA death threats are pouring in to anyone who tries to stand in Trump’s way, that may not be very likely.
The American presidency has already been transformed by the Trump era. Republican officials and judges have twisted and turned the constitution any way they can in order to try to stretch it over Trump’s actions and provide them with a patina of legitimacy. Ultimately, the end of the appointments process as it has been known for centuries may be just another casualty of one man’s insatiable will for power and chaos.
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Some other posts from America Explained about the U.S. constitution and how it shapes American politics today:
