Akhil Reed Amar, Josh Chafetz, and Thomas P. Schmidt write:

Donald Trump has not even returned to office, and already a constitutional crisis may be in the making. Trump has started announcing the people he intends to nominate for positions in his new administration. That is his prerogative. Several senators have criticized some of Trump’s choices. That is their prerogative (and two Trump nominees have already withdrawn under pressure). But rumors have been circulating of a plan to have Trump dismiss the Senate altogether, in a desperate effort to jam his nominees into office. There is simply no way to do this consistent with the text, history, and structure of the Constitution.

The Constitution and laws require the Senate’s approval to fill many of the government’s most important offices—such as attorney general or secretary of state—all of which wield extraordinary powers on behalf of the public. The Senate’s involvement helps to ensure that the people in these jobs have the necessary competence and integrity. In Alexander Hamilton’s apt words, the Senate can prevent the appointment of “unfit characters” who would be no more than “obsequious instruments” of the president’s “pleasure.”

The Senate’s check on the president can of course lead to friction and frustration at the start of an administration, while a new president’s nominees are considered and sometimes even rejected by the Senate. Advice and consent takes time. But as Justice Louis Brandeis famously observed, checks and balances exist “not to promote efficiency but to preclude the exercise of arbitrary power.” The purpose of the Constitution “is not to avoid friction” but “to save the people from autocracy.”

That is why any effort to cut the Senate out of the appointments process would be troubling; it is disdainful of self-government under a Constitution altogether. Trump’s supporters have suggested two ways to get around the Senate’s advice-and-consent process. In the first, the Senate would vote to go into recess soon after Trump’s inauguration, allowing him to unilaterally make a series of “recess” appointments. That plan may formally be legal, but it is plainly improper. The president is authorized to make recess appointments to “ensure the continued functioning of the Federal Government when the Senate is away,” as Justice Stephen Breyer wrote for the Supreme Court in 2014. That mechanism was vital in an age when the Senate was frequently absent from the capital for months at a time and could not quickly and easily reconvene. But, as Breyer also noted, the Constitution does not give “the President the authority routinely to avoid the need for Senate confirmation.” For the Senate to go into recess at the beginning of a new administration for the sole purpose of allowing the president to fill up the government with whomever he pleases—all while the Senate is controlled by the president’s party and perfectly capable of considering his nominees—would be a clear misuse of the recess-appointment power. Happily, the new Senate seems to agree, balking at Trump’s request that it surrender its prerogative so meekly.

As a result, some House Republicans have begun to discuss a more extreme scheme, one Trump considered during his first term: Trump could instead send the Senate home against its will and fill the government during the resulting “recess.” This is flagrantly unlawful. [Continue reading…]