Shawn Griffiths
Photo by Getty Images on Unsplash.
One of the biggest legal questions going into the second term of President-Elect Donald Trump is, will he try to push through cabinet and government appointments he wants during a congressional recess? But also, can he?
The quick answer is there are constitutional provisions that say the president can (1) put Congress in recess if the House and Senate can't agree on adjournment and (2) fill vacant executive positions during a recess.
But what the president can get away with is not cut and dry, according to legal expert Sarah Isgur, who appeared on the latest episode of the Forward Podcast. Isgur served as a spokesperson for the Department of Justice during Trump's first term.
She breaks down the complexities of the legal questions at hand -- because while the constitution raises the possibility, modern attempts at recess appointments have failed in front of the Supreme Court.
The high court, for example, unanimously struck down attempts by former President Barack Obama to fill vacant government positions during a 3-day adjournment in 2014, ruling that 3 days did not constitute an actual recess.
Isgur explains that while the ruling was unanimous, the justices were divided on the issue of when such appointments were applicable. Some argued that if Congress was adjourned for 10 or more days, it would be different.
Notably, the conservative justices - 3 of whom are still on the bench (Thomas, Alito, Roberts) - argued that the recess power doesn't really exist. It would require a situation where Congress couldn't meet, but technology has overcome any need for recess appointments.
None of the justices in the "maybe 10 days is enough" camp are on the bench going into Trump's second term. Isgur believes that because their judicial philosophy is also gone, it's more likely that the Thomas-Alito-Roberts philosophy prevails.
In other words, she believes Trump will not be allowed to get around the Senate to make appointments. "[The justices] aren't real big on presidential power right now," she says, adding that SCOTUS is tired of presidents trying to skirt Congress.
She also notes that despite fears from Democrats that SCOTUS will give Trump a free pass because it includes 3 justices he put on the bench, the high court didn't during his first term.
"Donald Trump's administration, the first time, was the least successful presidential administration at the Supreme Court in modern history," Isgur said. "Do not assume this court is all in on Donald Trump."
Whether it is Trump or Biden, SCOTUS has increasingly become the check on presidential power, especially when the president intentionally tries to get around Congress to enact policy or ignore the Senate's authority to "advise and consent."
Here is the episode's full description:
"In this episode, legal expert and political commentator Sarah Isgur dives deep into the complexities of presidential powers, the role of the Supreme Court, and the challenges of navigating a polarized Congress. From the debate over recess appointments to bold predictions about a potential shake-up in federal bureaucracy under future administrations, this conversation unpacks the legal and political dynamics shaping governance today. Discover how the Constitution, Supreme Court rulings, and populist movements influence the balance of power and what it all means for America's future."
Check out the full conversation above.