Recess Appointment For Supreme Court Justice Far From Easy

The New Reform Club reports:

If the Senate majority is determined (filibuster considerations aside), the Senate majority can terminate the President’s recess appointment. The Senate need only reassemble at its regularly scheduled time (or earlier if permitted under its last adjournment order), and then—by simple majority vote—order:

(1) the termination of its current session;
(2) its reconvening immediately in a new (or second) session
(i.e., its “next session” under Article II, Section 3);
(3) the termination of its new (or second) session; and,
(4) it reconvening immediately in a further (or third) session.

In other words, two swings of the presiding officer’s gavel, and the Senate can turn out all the President’s recess appointees.

Prior to Noel Canning, the President could have pushed back against this Senate-centered strategy. Prior to Noel Canning, the President could have made further or new recess appointments during the instantaneous breaks between any two back-to-back Senate sessions. (Theodore Rooevelt did this circa 1905.) But post-Noel Canning, such a presidential response is now forbidden: both intra-session and inter-session breaks must be at least 10 days long to permit a constitutionally valid presidential recess appointment. In regard to the Senate strategy proposed here, the recess between two back-to-back Senate sessions is instantaneous. Thus, the President cannot push back against a determined Senate majority.

An article well worth your time.