Recess appointments could short-circuit Senate opposition to Trump nominees: ANALYSIS

By urging the incoming GOP Senate majority to embrace recess appointments to install members of his Cabinet, Republican President-elect Donald Trump is in effect asking his party to unilaterally surrender a major constitutional responsibility and key check on presidential power.

Article II of the Constitution gives a president authority to make appointments "by and with the advice and consent of the Senate," which typically must hold hearings on a candidate and take a vote to confirm. Installing members of the Cabinet or executive branch when the Senate is out of session bypasses those steps.

The fact that recess appointments have emerged as an early litmus test in the race for Senate GOP leader could be an indication that at least some of Trump's expected nominees will be highly controversial and potentially unconfirmable.

During Trump's first term, members of his own party openly opposed some of his appointments, forcing the nominations to be withdrawn and reissued.

While many Republicans in the past have protested recess appointments as a brazenly political end run around the Senate, the practice is neither unprecedented nor unconstitutional.

Bill Clinton made 139 recess appointments while in the White House; George W. Bush made 171; and Barack Obama made 32, according to the Congressional Research Service. In most of those cases, the Senate was controlled by the opposite party.

The U.S. Supreme Court in a 2014 decision, NLRB v. Noel Canning, gave the executive branch broad leeway to fill executive branch vacancies when the Senate is not in session, even for political purposes such as difficulty securing Senate confirmation.

The court laid out guidelines for the process in Canning, noting that the Senate is in recess "when it says it is" and that the Constitution requires the recess to last 10 days or more for a president to be able to fill an open seat.

One significant wrinkle is that a vote of the House is also necessary to approve an adjournment of 10 days or more. The Constitution's Adjournment's Clause says neither chamber should be out of session "for more than three days" without consent of the other.

Any of Trump's appointees successfully installed during a recess would have the same legal authority and pay as a Senate-confirmed appointee. That said, a recess appointment is temporary -- expiring at the end of the Senate's "next session" (effectively almost two years).

There's no bar on successive recess appointments of the same or a different person to a particular position, though it remains a contested legal question whether an individual installed twice during recess could continue to be paid, according to CRS.