3/4another post following
“[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, hemay adjourn themto such Timeas he shall think proper.”18
This empowers the President, under designated circumstances, to exert such direct control over the legislative schedule as to determine when the Senate is in session or in recess––which carries the constitutionally dispositive consequence of when the President has the choice of using the Recess Appointments Clause or the Appointments Clause or both versus when he may only use the latter.19 In the Supreme Court’s Noel Canning decision, the majority opinion pronounced that “[t]he Constitution gives the President (if he has enough alliesin Congress) a way toforce a recess.”20 It is also important to recognize textually that this clause of the Constitutionto force a recess is triggered merely when there is disagreement between the two Houses of Congress; it is different than the President’s power “on extraordinary Occasions” toconveneboth Houses.21
Justice Scalia, writing for the remaining members of the Noel Canning Court in a concurrence, agreed with the majority and proclaimed that “Members of the President’s party in Congress may be able toprevent the Senatefrom holding pro forma sessions with the necessary frequency, and if the House and Senate disagree, the Presidentmay be able to adjourn both‘to such Time as he shall think proper.’”22 Ergo, there is broad consensus that “all nine justices of the Supreme Court [in Noel Canning] agreed that the President could use the Adjournment Clause to force an adjournment long enough, under the Noel Canning majority opinion’s holding and review of the history of presidential nominations, to make recess appointments, as long as there is a disagreement between the Senate and the House regarding when to adjourn.”23
Federal Vacancies Reform Act
Recognizing the imperativeof keeping the Executive Branch functioning properly and avoiding overlong vacancies,Congress passed a law to allow the President to fill vacancies with acting officersas a bridge to completing the confirmation process. This is the Federal Vacancies Reform Act (FVRA).
The FVRA process can also be lawfully used toextend recess appointments by up to 210 daysand this has occurred in the past without incident.24
President George W. Bush recess appointed Eugene Scalia to be Solicitor of Labor on January 11, 2002.25 In late November 2002, the Office of Legal Counsel (OLC) of the Department of Justice (DOJ) was asked “whether Eugene Scalia, now serving as the Solicitor for the Department of Labor under a recess appointment, could be designated the Acting Solicitor after his recess appointment expires” if he were appointed to a non-career senior executive service (SES) position beforehand.26 OLC concluded that “Mr. Scalia could be designated, while serving in his non-career [SES] position, as the Acting Solicitor after his recess appointment expires.”27There is no reason that President Trump could not make use of the FVRA in the same way that President Bush did.At no point in between 2002 and now has Congress ever amended the FVRA to render the FVRA’s augmentation of a recess appointment effectively continued by redesignating the recess-appointed officer to the same office in an acting capacity. Indeed, six Justices of the Supreme Court (Roberts, C.J., along with Kennedy, Thomas, Breyer, Alito, and Kagan) fully endorsed a strict and broad textual reading of the FVRA (declining to allow non-first assistant to the General Counsel of the NLRB to go on serving as the Acting General Counsel by President Obama, even though that official was one of the three types of officials the FVRA generally allowed to serve as an acting officer, because his service was prohibited by a separate textual provision of the FVRA).28
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