As President Trump prepares for a second term, he has voiced frustration with the Senate confirmation process, calling on Republican senators to align with his agenda to expedite the approval of nominees. His intentions were made clear in a November 10, 2024, tweet:

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. Sometimes the votes can take two years, or more. This is what they did four years ago, and we cannot let it happen again. We need positions filled IMMEDIATELY!

While President-elect Trump’s ability to use recess appointments remains theoretical until he takes the oath of office on January 20, 2025, the tweet signals his intent to leverage recess appointments as a strategy for filling cabinet positions and other key roles, despite Republican control of the Senate.

Trump’s Potential Use of Recess Appointments

Under the Recess Appointments Clause in Article II, Section 2, Clause 3 of the Constitution, the president holds limited authority to make temporary appointments without Senate approval during recess periods. This power ensures continuity in government operations when the Senate is unavailable to confirm nominees. As Alexander Hamilton clarified in Federalist No. 67, the clause was intended as a “supplement” to the standard confirmation process, only to be used when the regular method proved “inadequate.”

Over time, however, recess appointments have shifted from a constitutional necessity to a powerful political tool, increasingly used by presidents to bypass Senate opposition and secure appointments. The tactic has become even more significant as Senate confirmation timelines have continued to lengthen—doubling since the Reagan administration. Given that a president must fill positions to implement his policy agenda, recess appointments have become a mechanism for overcoming a prolonged political process.

Recess appointments have sparked significant controversy, especially in recent years. The Supreme Court has only ruled on the issue once in its 234-year history. In NLRB v. Noel Canning (2014), the Court clarified that pro forma sessions—brief meetings in which no substantive business occurs—are sufficient to keep the Senate in session, thereby blocking the president’s ability to make recess appointments and significantly limiting presidential discretion in using recess appointments. Since Noel Canning, the Senate has consistently avoided recess periods long enough to circumvent the pro forma session exception, effectively preventing presidents from making recess appointments.

Supporters of Trump’s plan argue that reviving recess appointments would allow presidents to staff the government with senior officials who share their policy vision, reduce delays in Senate confirmations, and ensure the executive branch can implement the people’s chosen policies. They cite Trump’s first term, during which about 1,200 senior positions required Senate confirmation, yet the confirmation process often took months or even years, leaving many roles unfilled.

However, Trump’s expressed intent to leverage recess appointments suggests a strategic use of executive authority aimed at minimizing political friction rather than responding to Senate inaction. This approach challenges the original intent of the Recess Appointments Clause. If pursued, it could provoke significant constitutional disputes, particularly under Noel Canning. Trump’s proposed strategy raises a foundational question about whether the president can unilaterally determine when the Senate’s role in the confirmation process has been merely obstructive such that its advice and consent is no longer required. Ultimately, such a move would erode the Constitution’s balance of powers by weakening the Senate’s constitutional duty of advice and consent.

Trump’s Potential Use of Adjournment Powers

If the Senate does not cooperate with his demands for recess appointments, some have speculated that Trump may consider invoking his Article II, Section 3 authority to adjourn Congress. The provision states 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.”

However, this power has never been exercised in U.S. history, leaving the question of what constitutes a disagreement over the proper time for adjournment uncertain. Any attempt by Trump to adjourn Congress to enable recess appointments would likely face immediate constitutional challenges as such action would directly undermine the separation of powers.

Conclusion

If President Trump were to aggressively pursue recess appointments and potentially invoke the adjournment power during his second term, it would push the boundaries of executive authority under the Constitution. Although over time the use of recess appointments has arguably become vital to an effective implementation of presidential policies, the use of recess appointments in this way creates a larger problem. The Recess Appointments Clause was designed as a safeguard to ensure continuity in government operations during genuine Senate recesses, but it was never intended to serve as a routine means of bypassing the Senate’s constitutional role of advice and consent. Expanded use of recess appointments and the potential invocation of the adjournment power in a politically charged climate could spark a constitutional clash, likely prompting litigation over the president’s authority to unilaterally adjourn Congress under Article II, Section 3, and perhaps even narrowing Noel Canning. Such actions would test the structural limits of separation of powers, forcing courts to clarify the scope of executive authority and the balance between presidential power and Senate oversight.

The Recess Appointments Clause reflects a carefully calibrated balance between the need for executive efficiency and the Senate’s duty to provide oversight and accountability in the confirmation process. Whether Trump’s proposed approach aligns with the Constitution’s structural safeguards—or undermines them—remains an important subject of debate. Any attempt to implement it could have lasting implications for the separation of powers and the integrity of the confirmation process.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].