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Even before he takes office, President-elect <a href="https://www.washingtonpost.com/donald-trump/" target="_blank" class="contextual_link">Donald Trump</a> is <a href="https://www.washingtonpost.com/politics/2024/11/10/trump-senate-thune-cornyn-scott-republican-leadership/6fcecf8c-9fc0-11ef-be87-1106a06524c6_story.html" target=_blank>setting the stage</a> for an unprecedented presidential power grab.

In <a href="https://truthsocial.com/@realDonaldTrump/posts/113460270802936865" target=_blank>a social media post</a> on Sunday, Trump said that the next Republican Senate leader “must agree to Recess Appointments” to permit Trump to install top officials without having to endure the delay and hassle of Senate confirmation.

This might sound like an arcane corner of Senate parliamentary procedure. It’s actually a dangerous <a href="https://www.washingtonpost.com/opinions/2024/11/11/senate-recess-appointments-trump-republicans/" target=_blank>end run around</a> the separation of powers. No president likes it, but the authority to pick appointees comes with a constitutional speed bump: Cabinet secretaries and others in high positions must be confirmed “by and with <a href="https://constitution.congress.gov/browse/article-2/section-2/" target=_blank>the advice and consent</a> of the Senate.”

There’s a constitutional exception here, as well. <a href="https://constitution.congress.gov/browse/essay/artII-S2-C3-1/ALDE_00001144/" target=_blank>The document gives</a> presidents “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.” That means a recess appointee can serve for as long as two years without Senate confirmation.

But recess appointments are supposed to be an aberration, not the norm. The power to make recess appointments was intended as a constitutional escape hatch, allowing the president to fill positions temporarily in emergency situations when the Senate was out of session, drafted for an era of horse-and-buggy travel.

Presidents of both parties have used — and abused — this tool, especially as the number of Senate-confirmed positions has grown, partisanship has intensified and the confirmation process has too often ground to a standstill. <a href="https://www.oyez.org/cases/2013/12-1281" target=_blank>In a 2014 case</a>, <i>National Labor Relations Board v. Noel Canning</i>, the Supreme Court slapped down President Barack Obama’s use of the recess power to make appointments even at a time when the Senate was holding pro forma sessions — with few if any votes — every three days to prevent such action. The court said the recess power could only be used when the Senate is on a longer break, of 10 days or so, effectively stopping the practice.

Notably, the court’s conservatives — although they agreed with the finding that Obama overstepped his authority — decried the recess power as an “anachronism” that undermines the separation of powers. “The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process,” wrote Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr.

At the time, Senate Republicans denounced this use of presidential authority and <a href="https://rollcall.com/2014/06/26/supreme-court-strikes-down-obamas-recess-appointments/" target=_blank>cheered the court’s intervention</a>. “The president made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even bothering to wait for its advice and consent,” said then-Senate Minority Leader Mitch McConnell (R-Kentucky). “A unanimous Supreme Court has rejected this brazen power grab.”

Two of those now running to replace McConnell as leader of the Senate GOP, John Thune (South Dakota) and John Cornyn (Texas), signed on to McConnell’s friend-of-the-court brief attacking Obama’s use of the recess power. The brief argued that the president’s authority to make recess appointments only applied between congressional sessions — not during breaks within a session — and only to vacancies that arise during the recess.

“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,” Trump posted on X and Truth Social. <a href="https://x.com/JohnCornyn/status/1855730861028569391" target=_blank>Cornyn duly issued a post</a> noting the constitutional power to make recess appointments. <a href="https://apnews.com/article/trump-senate-thune-cornyn-scott-republican-leadership-2a711f260887926676bb5d69866a1981" target=_blank>Thune promised</a> that “all options are on the table” to get Trump administration officials in place, “including recess appointments.” The third contender, Sen. Rick Scott (Florida), <a href="https://x.com/SenRickScott/status/1855693759281053758" target=_blank>responded to Trump</a>: “100% agree. I will do whatever it takes to get your nominations through as quickly as possible.”

What is really going on here? Is Trump planning to nominate officials so extreme that he could not get them through the confirmation process despite the comfortable padding of a likely 53-seat majority? Why is the president-elect demanding in advance of the leadership vote that the Senate cede its constitutional role?

It could be complicated for congressional Republicans to create a recess long enough to pass Supreme Court muster. The House and Senate have to agree on the timing and, even assuming Republicans keep control of the House, Senate Democrats could snarl the procedure for consenting to a recess.

But here, Trump has another possible constitutional trick up his sleeve, one he has threatened to use before in the service of his power to make recess appointments. A <a href="https://constitutioncenter.org/the-constitution/articles/article-ii/clauses/348" target=_blank>never-tested constitutional provision</a> provides that the president “may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.”

In April 2020, during the <a href="https://www.washingtonpost.com/coronavirus/" target="_blank" class="contextual_link">coronavirus</a> pandemic, Trump threatened to invoke that authority. “The Senate should either fulfill its duty and vote on my nominees, or formally adjourn so I can make recess appointments,” Trump said. “If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers of Congress.”

So, we must contemplate the possibility: One way or another — either because the supine Senate steps aside or because Trump suspends the legislature, as no president has done before — Trump installs his chosen officials without bothering to obtain Senate approval. This would not be the separation of powers that the framers envisioned but a president without checks and a system dangerously out of balance.

Finalist, Pulitzer Prize for commentary, 2007

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Ruth Marcus is an associate editor and columnist for The Post.

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