Senate Republicans have steadfastly refused to allow a confirmation hearing for Merrick Garland, President Obama’s nominee for the Supreme Court seat vacated by the death of conservative Justice Antonin Scalia. Throughout 2016, Senate Democrats attempted to use Senate Republicans’ recalcitrance as a campaign issue, but that tactic failed spectacularly, as Democratic candidates for Senate vastly underperformed compared to pre-election expectations.
Senate Republicans have also refused to allow the Senate to go into recess, holding it open with a series of pro forma sessions to prevent Obama from seating Garland (along with a number of other controversial appointments) through the use of his recess appointment power. But Obama might have an opportunity tomorrow to attempt to force Garland onto the Supreme Court, with or without Congress’ help.
Here’s how: when Congress returns to business tomorrow, there will be a mandatory intersession recess as the 114th Congress is gaveled out, and the 115th Congress is gaveled in. This intersession recess is expected to be extremely brief, perhaps as little as five minutes or less. During that time, Obama could attempt to appoint Garland to a recess term, which would last until the end of the next Senate session. The theory behind this exercise of the president’s recess appointment power is that under the Supreme Court’s decision in NLRB v. Noel Canning, the Supreme Court left open the possibility that the president has at least theoretically absolute recess appointment power under an intersession recess. Some liberals who have been frustrated by Senate Republicans’ obstructionism on Garland have encouraged Obama to try this ploy.
Doing so would accomplish little substantively, although it would severely disrupt President-elect Trump’s timetable to fill the vacancy. There are open questions about the constitutionality of such a maneuver, and any decisions Garland participated in would be subject to challenge on the basis that his appointment was not constitutional. As law professor Jonathan Adler explains, an additional barrier to this ploy is that the Senate could end Garland’s term almost immediately:
Dayen rightly notes that it would be difficult to quickly arrange a lawsuit to challenge the constitutionality of Garland’s appointment (though such suits have been brought before). Yet such a suit would not be required. All that the Senate would need to do is end its next session by adjourning sine die and Garland’s term would end. This is because, under the Constitution’s Recess Appointments Clause, such appointments terminate at the end of the next Senate session. Adjourning sine die would require the cooperation of the House and a president’s signature, but that would be no obstacle come Jan. 20. In other words, Congress could terminate any recess appointment made by Obama in less than three weeks.
As Adler further notes, Obama is unlikely to even attempt the gambit for such a brief term because doing so would remove Garland from his seat on the critically important United States Court of Appeals for the D.C. Circuit — a seat that Trump would then be able to fill with an appointee of his own.
In other words, it seems highly unlikely that Obama will attempt such a gambit, or that it will be successful if he does.