If my inbox and Twitter mentions are any indication, liberals are alarmed that President Donald Trump might fire Attorney General Jeff Sessions (or force him to resign) and then, once Congress goes on recess for the summer, appoint an interim attorney general who will fire special counsel Robert Mueller or sabotage his investigation.
Never say never with Trump, of course, but it’s worth noting—for the benefit of cable talking heads and the general public alike—that Trump can’t just snap his fingers and make this happen. He may think he can, but he can’t.
The Supreme Court’s 2014 decision in National Labor Relations Board v. Noel Canning meaningfully circumscribed the recess appointment power, making it unconstitutional for a president to make such appointments unless the Senate adjourns for a formal recess.
A determined minority can thus effectively void the recess appointment power until the official end of the congressional term in January, by holding pro-forma sessions that keep the Senate technically in business. To fully recess, Democrats would have to agree to an adjournment resolution. If Senate Majority Leader Mitch McConnell wanted to do Trump’s bidding, he could introduce such a resolution (to adjourn until, say, the day after Labor Day) but Democrats could filibuster that resolution, which would give way to a messy floor fight, and test of wills, that Democrats would probably win.
I doubt McConnell wants that fight. But there’s no other legal path to a recess appointment. Which is why there have been pro-forma sessions during every recess of this term. McConnell knows how this works; he perfected the strategy back when he was minority leader. And my sense is that that the current minority leader, Chuck Schumer, will make clear this afternoon that Democrats haven’t forgotten.