What are Recess Appointments? How Could Trump Use Them to Undermine Democracy?

Just days after he was declared the winner of the 2024 election, President-elect Donald Trump indicated that he may use recess appointments to fill his cabinet positions and other roles — even though his party will control the Senate.

This is unprecedented, and if Trump does this, it could threaten our democracy and the separation of powers doctrine this country was built on, according to Mike Zamore, National Director of Policy and Government Affairs at the ACLU.

“I think it is a very dangerous step away from the checks and balances that are intended to constrain abuses of power,” Zamore said. “There’s a reason that they put the confirmation process in the Constitution.”

What is a Recess Appointment?

Article II of the U.S. Constitution contains a Recess Appointments Clause stating that “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.”

Zamore explained that it’s important to consider the context in which this clause was written.

“The recess appointment power was created because in the 18th century, the travel took weeks, and Congress was out of session for months at a time,” Zamore said. “There were big stretches of time when the Senate wasn’t around to confirm people.”

Now, the Senate takes a number of recesses throughout their session, so senators can travel back to their home districts and work with their constituents. The longer recesses lasting anywhere from a week to a month usually fall around holidays, but the Senate typically recesses from Friday to Monday every week.

Per the clause, an individual appointed in this fashion can only hold the position until the next session of the Senate ends, and each session is around a year long. If Trump appoints someone through this process shortly after he enters office, the individual could serve in the role until the end of 2026.

In summary, this clause exists to ensure that the federal government can continue to operate at full capacity while the Senate is not in session.

How Recess Appointments Have Been Used in Recent History

However, some presidents haven’t just used recess appointments in emergencies. 

“More recently, it was used as a response by frustrated presidents to obstructive senates that were refusing to do the confirmation business,” Zamore said. 

This is more likely when the Senate and White House are controlled by different parties.

Multiple recent presidents have used recess appointments, including Bill Clinton with 139, George Bush with 171 and Barack Obama with 32. However, none of them used the appointments to fill cabinet positions, like Trump is proposing.

In 2012, Obama used recess appointments to fill three vacancies on the National Labor Relations Board (NLRB) while he had a Republican-controlled Senate blocking his nominees. 

“There was a big showdown in the Obama administration over this because the Senate was filibustering a lot of nominees, not really based on the qualifications for the nominee, but because the Republican minority just didn’t want to allow those jobs to get filled,” Zamore said.

He explained that at the time, the filibuster could be used for nominations, so 60 senators were needed to confirm someone. This changed in 2013 when Senate Democrats voted to eliminate the use of the filibuster on all presidential nominees except for U.S. Supreme Court justices. Now, only a simple majority is needed for most confirmations.

In January 2012, Obama installed these appointees during a brief three-day recess because the Senate was holding pro-forma sessions — brief meetings where no formal legislative business is conducted — every Tuesday and Friday to try to block him from using recess appointments.

Meanwhile, in 2010, Noel Canning — a bottler and distributor of Pepsi-Cola products — was in negotiations with its employee union, and at one point, the union filed a complaint with the NLRB arguing that Noel Canning was engaging in unfair labor practices. An administrative law judge ruled in favor of the union. 

In February 2012, the NLRB affirmed the administrative judge’s ruling.

Noel Canning then appealed the decision to the U.S. Court of Appeals for the Washington, D.C. Circuit, which held in 2013 that the NLRB’s ruling was invalid because not enough members of the board were present as three of the five members were “invalidly appointed.”

The case was appealed to the U.S. Supreme Court.

U.S. Supreme Court Weighs In On Recess Appointments

In 2014, the U.S. Supreme Court issued a unanimous decision, ruling that presidents can only make recess appointments during a recess period of at least 10 days.

The ruling invalidated Obama’s appointees at the time and created a precedent for future presidents to follow. The Senate was never in recess for ten consecutive days during either Trump’s first term or Biden’s presidency, so neither of them have made recess appointments.

Trump Asks Congressional Republicans to Help Him

Due to the 2014 SCOTUS ruling, the House and Senate would have to go out of their way to have a recess long enough to allow Trump to make recess appointments during his second term.

On Nov. 10 in a post on X, Trump declared that “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.”

Since then, he announced numerous controversial cabinet picks, including Matt Gaetz — who has since withdrawn his name, Pete Hegseth, Robert F. Kennedy Jr. and Tulsi Gabbard.

A week later, in an interview with Fox News, House Speaker Mike Johnson indicated that he would be open to allowing Trump to make recess appointments because of the “very divided government” and “very partisan atmosphere.” Incoming Senate Majority Leader John Thune (R-S.D.) also said he would be open to it.

However, some Republicans have already expressed opposition to Trump using recess appointments, including New York Rep. Mike Lawler, North Carolina Sen. Thom Tillis, Alaska Sen. Lisa Murkowski and incoming Utah Sen. John Curtis, some citing the Senate’s important role in the process of filling executive positions.

“The Senate confirmation process will make sure that you don’t have people in positions of power who are so loyal and obsequious and owe their allegiance only to the president rather than to the public,” Zamore said. 

What Happens Next?

Even though Trump has announced who his nominees will be, he can’t officially appoint them until he’s sworn into office on Inauguration Day, Jan. 20. It’s unclear whether he will use recess appointments or not, but if he does use them as a first resort, that’s a harmful precedent to set, Zamore said.

“If you take away the [Senate’s] powers and let it all get concentrated in the Executive Branch, then you really risk those powers being used against the American people and our rights and privileges rather than for us.”