Keeping Calm And Carrying On

Here's how Mike Johnson can help Trump trigger the nuclear scenario bypassing the Senate with recess appointments. There are wrinkles but they might prove surmountable. Senate GOP can tacitly acquiesce in the scheme.

Read these four screen caps from pod with expert Sarah Binder: pic.twitter.com/cZmvRTcA5v

— Greg Sargent (@GregTSargent) November 19, 2024

Read the tweet, and “We’re done for! We’re done for!” Read the passage in the images, and: we’re not.

Even if Trump and Johnson try to force the Senate into recess, as the interview notes, the Majority and Minority Leaders can call the Senate back into session the next day. Unmentioned is NLRB v Canning. This long quote gives some insight into how ambiguity in the Constitution is handled.

The Supreme Court ultimately adopted a relatively broad interpretation of the Clause in National Labor Relations Board v. Noel Canning. With respect to the meaning of the phrase Recess of the Senate, the Court concluded that the phrase applied to both inter-session recesses and intra-session recesses. In so holding, the Court, finding the text of the Constitution ambiguous, relied on (1) a pragmatic interpretation of the Clause that would allow the President to ensure the continued functioning of the federal government when the Senate is away, and (2) long settled and established [historical] practice of the President making intra-session recess appointments. The Court declined, however, to say how long a recess must be to fall within the Clause, instead holding that historical practice counseled that a recess of more than three days but less than ten days is presumptively too short to trigger the President’s appointment power under the Clause. With respect to the phrase may happen, the majority, again finding ambiguity in the text of the Clause, held that the Clause applied both to vacancies that first come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess. In so holding, the Court again relied on both pragmatic concerns and historical practice.

Note that, per Canning, a recess of less than 10 days is too short to trigger the recess power. Sure, Trump could challenge that; but it wouldn’t get his appointees in office any sooner. Or any surer, for that matter. Mostly he’d just waste time and resources, and piss off Senators when he needs every one of them on-side.

Trump wants to talk like a dictator. That still doesn’t mean he’ll be able to act like one.

Pro tip: there is always “ambiguity” in the law. That’s what allows for justice. Just because a statute or clause is not “iron clad,” doesn’t mean it’s a wet noodle. Keep calm and carry on.

Bottom line: Trump is still the same ignoramus who thinks there was a Clinton “socks case” that gave him the right to whatever he wanted on the way out the door the first time. The PRA actually established the opposite of that (and Judicial Watch lost the “socks case”). IOW, he may make more threatening noises than last time, but he’s still clueless. And government is not a chew toy; although the ignorant think so.

Take a breath. Maybe think about Xmas. Or at least Advent.