Here's what Justice Scalia had to say about Trump’s 'recess appointments' scheme

20 November 2024

With President-elect Donald Trump having made some highly controversial picks for his incoming cabinet — among them, former Rep. Matt Gaetz (R-Florida) for U.S. attorney general, anti-vaxxer conspiracy theorist Robert F. Kennedy to lead the U.S. Department of Health and Human Services (HHS), and former Rep. Tulsi Gabbard for nationalist intelligence director — many reporters are raising questions about their ability to be confirmed by the U.S. Senate

Some of Trump's more controversial picks may encounter resistance from not only Democratic senators, but GOP senators as well.

Trump, in response, has threatened to use the process known as "recess appointments" if Senate Republicans refuse to get on board those picks. By forcing the U.S. Senate into recess, critics warn, Trump might try bypass the Senate and ram them through regardless of what senators think.

But according to ABC News' Terry Moran, a major figure on the right — the late U.S. Supreme Court Justice Antonin Scalia — offered an argument against the approach that Trump is threatening to resort to.

Moran, in a November 20 post on X, formerly Twitter, writes, "This is fun. Listen to Justice Antonin Scalia explain why Trump cannot use a brief recess in the Senate to appoint his most controversial cabinet nominees, in an opinion joined by Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito."

Moran makes his point by linking to what Scalia had to say in a June 2014 ruling.

"As Justice Breyer has just said," Scalia wrote, "I have an opinion in which the Chief Justice, Justice Thomas and Justice Alito joined, we agreed that the appointment at issue here violated the Constitution, but we disagree with the majority's interpretation of the President's unilateral power to make recess appointments."

Scalia continued, "Most Americans probably did not study the Recess Appointments Clause in grade school, but most of us did learn that the Constitution created a system of checks and balances among the three branches of Government. Those checks and balances are every bit as important as the Bill of Rights. Indeed, they may be more important because without them, Bills of Rights are false guarantees that can be ignored by the one person or the one party in charge you. One important check on the President is the general rule that when he appoints officers, he must do so with the advice and consent of the Senate."

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