There has been a great deal of recent speculation about whether President-elect Donald Trump will attempt to sidestep the Senate confirmations process and place some of his nominees for cabinet positions and other key administrative posts through recess appointments. While the President-elect is very forthcoming about his desires to see his nominees confirmed by the Senate as quickly as possible, the use of recess appointments would be extraordinary. The President-elect will seek to use his second and final term in the White House to accomplish his vision for the country, and the dynamics shown in the coming weeks will be instructive in understanding how the President-elect will use his executive power to manage the Republican party and its agenda.
Recess Appointments Under the Trump Administration
Recess appointments, once a source of significant executive
power and a flashpoint in presidential-Congressional relations,
have all but vanished from modern politics. Since the Supreme
Court's 2014 Noel Canning v. NLRB
decision,1 the Senate's strategic use of
pro forma sessions have blocked Presidents Barack Obama, Donald
Trump, and Joe Biden from the conditions needed to make recess
appointments. President-elect Donald Trump reignited this constitutional debate, calling
on candidates for Senate Republican leadership to embrace recess
appointments, stating "Any Republican Senator seeking the
coveted LEADERSHIP position in the United States Senate must agree
to Recess Appointments (in the Senate!), without which we will not
be able to get people confirmed in a timely manner."
President-elect Trump's comments, issued just days before
Senate Republicans selected Senator John Thune (R-SD) as their next
leader, illustrate the continued tension between the legislative
and executive branches. Was this an attempt to exert the
President-elect's influence on Republican members of Congress,
or does it actually signal a plan to use recess appointments to
fill political positions critical to his administration's
agenda? With Republicans set to control both chambers of Congress,
it is possible the legislative branch could lift its procedural
barriers, enabling President-elect Trump to fully wield this
dormant presidential authority. If successful, President-elect
Trump's push to restore recess appointments could mark a
pivotal moment in tipping the balance of power between the
executive and legislative branches.
Background on Recess Appointments
The Recess Appointments Clause of Article II of the Constitution
grants the president the authority to temporarily fill vacancies
without Senate approval during recesses.2
Former Presidents Bill Clinton and George W. Bush frequently
utilized this power, making 139
and 171 recess appointments, respectively. Former President
Barack Obama made 32 recess appointments before the Noel
Canning decision was issued. After that, beginning in the
110th Congress, the practice was dramatically curtailed when the
Senate started using pro forma sessions to break up long recesses
and effectively prevent recess appointments. In January 2012,
President Obama made four recess appointments during a three-day
recess that were challenged as unconstitutional, with plaintiffs
arguing the Senate had not been absent long enough to legally be in
recess. Under Noel Canning, the Supreme Court held that
three of the appointments made during the three-day recess were
invalid.
In particular, the Supreme Court upheld the president's
authority to make recess appointments during both intra-session
(the time Congress is out of Washington, D.C. during the normal
course of the year) and inter-session recesses (the time Congress
has adjourned between the end of one Congress and the beginning of
a new Congress), provided the recess periods last at least 10
days.3 However, the ruling also empowered
Congress to block such appointments entirely through the use of pro
forma sessions — brief meetings designed to prevent a formal
recess. This interpretation provided Congress with the ability to
prevent any recess appointments, significantly limiting the
president's ability to bypass the Senate confirmations
process.
The Supreme Court's decision has since turned the Recess
Appointments Clause into a dormant constitutional power, leaving
prolonged vacancies unfilled and underscoring the growing tension
between the executive and legislative branches over the Senate
confirmations process.
President-Elect Trump's Renewed Focus
President-elect Trump's push for recess appointments may
reflect his desire to expedite the installation of his appointees
in the face of increasing confirmation delays. Data from the Center
for Presidential Transition shows that nominees submitted by
President Biden during his first year waited, on average, more than
100 days for confirmation — nearly three times longer than those submitted
during former President Ronald Reagan's first year. In
comparison, President-elect Trump's initial cabinet nominees
during his first administration faced an average wait of almost 25 days, with only his Secretaries of
Defense and Homeland Security confirmed on Inauguration Day.
Meanwhile, former President Obama's initial cabinet nominees
waited an average of less than six days for confirmation, with six
of his cabinet members confirmed on Inauguration Day.
Some commentators suggest that President-elect Trump could use
recess appointments to install nominees who might not otherwise be
confirmed due to the lack of support by a majority of the Senate.
Such a strategy has its limitations. According to Article II,
Section 3 of the Constitution, recess appointments are temporary,
expiring at the end of the "next session" of Congress
following the appointment.4 Each session of
Congress is one year in duration.
For example, a person appointed during the first session of the
119th Congress (calendar year 2025) or the recess between the first
and second sessions would serve until the end of the second session
of the 119th Congress (January 2027). Similarly, a person who is
appointed during the 119th Congress' second session (calendar
year 2026) would serve until the end of the first session of the
120th Congress (December 2027). The Federal Vacancies Reform Act,
which allows the president to temporarily fill vacancies with
acting officers during the confirmation process, can also be used
to extend recess appointments by up to 210
days.5 Furthermore, limitations frequently
included in Congressional appropriations measures can limit the
ability of such appointees to be paid, if the Senate considers and
rejects the nomination of such an
appointee.6
Historically, many individuals given recess appointments were
later confirmed to their positions. For instance, former President
Obama made 32 recess appointments, and nominated each appointee to
the same position. Of these, 20 were ultimately confirmed by the
Senate, while the nominations of the remaining 12 were either returned to, or withdrawn by, the former
President.
Recess Appointment Risks
The U.S. system of separated powers requires the president to submit his nominees for certain senior government roles to the Senate for approval. This system of checks and balances helps ensure qualified individuals serve in the most senior roles of the administration. Enabling recess appointments would risk a president abusing the authority to install unqualified candidates to senior positions. With Republicans in control of the Senate, the Senate will be able to hold hearings on President-elect Trump's intended nominees between the first day of the 119th Congress (January 3) and Inauguration Day on January 20. This should allow President-elect Trump's cabinet nominees to be vetted through the normal Senate confirmation process quickly without the need for recess appointments.
What to Expect from the Senate
Shortly before the Senate leadership elections, newly-elected
Senate Majority Leader John Thune (R-SD) said that "all options are on the
table," including recess appointments, to ensure
President-elect Trump's nominees are installed as quickly as
possible. Since becoming the Senate Majority Leader, Senator Thune
expressed hope that recess appointments will not be necessary,
warning that the outcome will depend on Senate Democrats confirming
President-elect Trump's nominees in a timely manner.
With some Republican Senators declining to express support for
some of President-elect Trump's nominees, it may be difficult
for Sen. Thune to secure enough votes to place the Senate into
recess if Senate Democrats slow down the confirmation process. As
the Senate Majority Leader, Sen. Thune controls the Senate schedule
for the year, including determining when the chamber will go into a
pro forma session. He could potentially schedule a recess longer
than 10 days in early in the year, or cancel pro forma sessions
during a longer recess. For example, Congress typically takes a
week-long recess over Presidents Day in February and a two-week
recess for Passover and Easter. The Passover and Easter recess in
April may be a particularly attractive target for Sen. Thune
because he can use the potential of formal recess on those dates to
prod Senate Democrats into reducing the number of procedural
hurdles they use to impede Senate confirmation of President-elect
Trump's nominees. The Senate schedule for 2025, which we expect
to be released in mid- to late-December, may provide further
insight into Sen. Thune's plans.
What to Expect from the House
Much of the control of the confirmation process of nominees to
lead cabinet agencies and other presidential appointments is within
the Senate. However, Article I, Section 5 of the Constitution
requires both the House and Senate to consent to recesses longer
than three days.7 Therefore, the House has the
power to object to the Senate's attempt to adjourn for more
than three days creating the opportunity for a recess appointment
to occur. However, it is incredibly unlikely that House Speaker
Mike Johnson (R-LA), a close ally of President-elect Trump, would
block a Senate recess that would enable recess appointments.
There is also speculation that President-elect Trump might invoke
Article II, Section 3 of the Constitution to force Congress into a recess. This provision, which has never before been used,
allows the president to adjourn Congress "in case of
disagreement" between the House and Senate over the timing of
adjournment.
Under this scenario, the House could pass a concurrent resolution
to adjourn for more than 10 days. If the Senate adopts the
concurrent resolution, it would create a recess period long enough
to install recess appointments. If the Senate does not agree,
President-elect Trump could potentially use his Article II
authority to adjourn Congress for more than 10 days, achieving the
same result. While President-elect Trump threatened to invoke this power during his
first term, he ultimately refrained from doing so. Using this power
for the first time would lead to inevitable legal challenges of any
recess appointment and would also allow new legal challenges of any
regulatory decisions made by such an appointee. It could also
potentially strain the President-elect's relationship with some
members of his party in Congress.
Conclusion
In the coming months, President-elect Trump's push to revive
the recess appointments process may test the limits of executive
authority and the Senate's willingness to adapt longstanding
procedures. While the legal and procedural barriers established by
the Noel Canning decision and pro forma sessions remain
significant, the alignment of a Republican-controlled Congress with
President-elect Trump could shift the balance. If Sen. Thune
strategically adjusts the legislative calendar and House Speaker
Johnson backs prolonged recesses, the President-elect may
successfully sidestep Senate delays to install key
appointees.
This approach carries risks — recess appointments are
inherently temporary and could limit the administration's
ability to retain officials in critical positions. Moreover,
efforts to bypass the traditional confirmation process may deepen
partisan divides and further strain the relationship between the
executive and legislative branches.
Ultimately, whether President-elect Trump's push for recess
appointments represents a practical strategy to overcome
legislative gridlock or a symbolic assertion of renewed
presidential power will depend on the political dynamics of the new
Congress. President-elect Trump wants his nominees to get a fair
and swift confirmation process at a pace similar to historic
precedents, and if he has to rattle the controversial recess
appointment saber to get that, he may be willing to do so. If
successful, this effort could mark a turning point in the modern
use of recess appointments, reshaping their role in the broader
struggle between the presidency and Congress over federal
appointments and confirmations.
Footnotes
1. 573 U.S. 513 (2014).
2. "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." U.S. Constitution, Art. II, §2, cl. 3.
3. 573 U.S. 513 (2014).
4. See 25 Op. OLC 182 (2001), 41 Op. Att'y Gen. 463, 470-471 (1960).
5. 5 U.S.C. § 3346.
6. Pub. L. No. 110-161, Div. D, §709 (2007), noting "no part of any appropriation contained in this or any other Act shall be paid to any person for the filling of any position for which he or she has been nominated after the Senate has voted not to approve the nomination of said person."
7. Art I.S5.C4.1.
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