In 2014, Scalia with Roberts, Thomas, and Alito argued that Trump's desired recess appointments are unconstitutional

[tritsofme]

The decision in NLRB v. Noel Canning, was unanimous in striking down certain recess appointments made by President Obama as unconstitutional.

Scalia wrote a concurrence, joined by the other conservatives (minus Kennedy), that argued the decision did not go far enough:

"that recess appointments will remain a powerful weapon in the President's arsenal. ... That is unfortunate, because the recess appointment power is an anachronism." Scalia argues that the recess appointment power only applies to vacancies that arise while the Senate is in recess.

Under this reasoning, even if Trump succeeded in forcing both chambers into recess, if the vacancies did not occur during that recess, any appointments would be unconstitutional.

It will be interesting to see if they can twist themselves out of this argument for Trump. But such a case would definitely be barreling toward the Supreme Court.

[lame54]

1. That was then. Whatever

[riversedge]

4. Different court now. We shall find out soon.

[MurrayDelph]

9. More-importantly

that was when a Democratic president was trying to do it.

[Irish_Dem]

2. Most likely they will do what Trump and their billionaire minders tell them to do.

[NJCher]

3. very interesting.

Let's watch for how this is raised in opposition.

[tritsofme]

10. The plaintiffs would definitely be singing this tune to the conservative justices.

[NJCher]

11. you mean

once it goes to the SC?

[al_liberal]

5. So the senate recesses before Jan 20.

And instantly all of those vacancies happen during a recess. Problem solved.

[tritsofme]

6. Not really. Noel Canning stipulates a recess must last at least 10 days.

Also, Cabinet officials don’t automatically lose their jobs on 1/20, they must resign or be fired.

[surfered]

7. Sorry, but you make it sound like precedent is a thing. Not with this Court.

[Kid Berwyn]

8. Thank you for the timely and important history.

I, for one, have the utmost faith in Justice John Roberts and his five co-conspirators in treason on SCROTUS will do whatever is necessary to undo precedent in order to advance the cause of concentrated wealth in service of White power.