Ed Whelan writes that President Trump may adjourn Congress as a means to instantly confirm his entire cabinet without any confirmation hearings. In an earlier post, Ed writes that this approach may risk the Court overruling Justice Breyer's Noel Canning majority opinion, and adopting Justice Scalia's concurrence.
I maintain that Justice Scalia's opinion is correct on originalist grounds, as I noted in my earlier post. And I would be happy to see Justice Breyer's majority opinion repudiated. But even so, is this potential plan inconsistent with Justice Scalia's concurrence?
Under Scalia's opinion, the President could only fill a vacancy that arises during the recess of the Senate. Trump's plan would only be feasible if these cabinet positions become vacant during the recess of the Senate. Presumably, the holdover Biden cabinet officials will be long gone on January 20. And, on January 20, I suspect the President will use the Vacancies Reform Act to detail friendly people already in the federal government to serve as acting cabinet officials. What if one of them were to resign during the presidentially-induced recess? That is, on January 21, Trump adjourns Congress, and all acting cabinet officials resign. Would those vacancies have arisen during the recess of the Senate? Or, would the relevant starting point be when the last-confirmed official resigned? I don't know how the Recess Appointments Clause, as understood by Scalia, interacts with the Vacancies Reform Act. I doubt anyone has given this issue much thought.
