Republicans are set to control the White House and both houses of Congress in January. However, President-elect Donald Trump's plan to nominate loyalists for key Cabinet positions could lead to a clash with the Senate, which holds the constitutional responsibility for advising and consenting on presidential nominees.
There is talk of bypassing the Senate and using temporary recess appointments, which last up to two years. This move could potentially lead to a legal battle that might reach the Supreme Court. Trump may need to assert a never-before-used power to force the Senate into a recess if it does not agree to one.
The Supreme Court has only dealt with one case involving recess appointments in its 234-year history. In 2014, the court unanimously ruled that President Obama's recess appointments to the National Labor Relations Board were illegal. The justices were divided on the interpretation of the ruling, with some advocating for a limited approach and others taking a stricter stance.
The composition of the Supreme Court has become more conservative over time, with Trump appointing three justices during his term. The court's stance on recess appointments may vary with this shift, although precedent is typically respected and not easily overturned.
The issue of recess appointments returning to the high court is unlikely to happen swiftly, as legal standing is required for a lawsuit to be filed. Only individuals directly affected by actions taken by officials appointed during a recess have the right to challenge such appointments.
Notable figures who received recess appointments and later secured Senate confirmation include Chief Justice Earl Warren, Justice William Brennan, and Federal Reserve Chairman Alan Greenspan. On the other hand, some individuals, like John Bolton, left office after failing to garner Senate approval.
A novel legal question could arise if Trump were to invoke a constitutional provision that allows him to potentially force a congressional recess. This provision, never before utilized, grants the president the authority to intervene in case of a disagreement between the House and Senate regarding adjournment.
