The prospect of multiple Supreme Court appointments looms large for the incoming Trump administration, and liberal stalwarts are making a last-ditch appeal to Barack Obama to appoint Judge Merrick Garland through an aggressive, and dubious, parliamentary maneuver.
The Constitution’s recess appointment power allows the president to make appointments to federal offices without congressional consent while Congress is in recess. The appointment is only temporary, and expires at the conclusion of the ensuing Senate session — in this case, December 2017.
To mitigate against recess appointments during adjournments, Congress typically holds “pro forma” sessions on a regular basis — the chamber is, quite literally, gaveled into and out of session in a matter of seconds, making recess appointments impossible. However, some liberal commentators argue that the president has authority to make a recess appointment in a matter of seconds on Tuesday.
The 114th Congress will hold its final session on Tuesday, during which the speaker of the house will officially conclude the term’s business. At the strike of the speaker’s gavel, Congress will technically be in, if only for a moment, before the 115th Congress is called to session one minute later. It’s that brief moment, called an “inter-session recess,” that some believe presents Obama the opportunity to exercise his recess appointment power.
This brazen exercise of the recess appointment prerogative was deployed once before, by former President Theodore Roosevelt in 1903. “There was but one fall of the gavel,” a newspaper reported, according to the Washington Post, “but one stroke, but one sound,” and Roosevelt made 193 recess appointments. His loose reading of the recess appointment power was widely repudiated, and never replicated by his successors.
As professor Jonathan Adler of Case Western University School of Law explains at the Washington Post’s Volokh Conspiracy, this theory of the recess appointment power has already been foreclosed by the Supreme Court.