Potential Constitutional Hardball in a Republican-Controlled Senate
If the Democratic candidates in Georgia are able to win both seats, the Senate will split 50-50, and in light of Vice President Harris’s role, the Democrats would be deemed the majority party. But if one, or both Republican candidates prevail, the Republicans would be deemed the majority party. If Senator McConnell has the gavel, then there is no guarantee that President Biden’s nominees will get floor votes. Moreover, legislation that passes the Democratic-controlled House would be dead on arrival. Is there anything the Biden Administration can do to break that gridlock?
Noel Canning effectively foreclosed the use of the recess appointment power with a divided Congress. So long as McConnell keeps Senate breaks less than three days, there would not be a recess long enough to trigger the Recess Appointments Clause. But Noel Canning recognize a workaround: the President can adjourn Congress, force a recess of sufficient length, and make a recess appointment. (Noel Canning was not clear on how long that break had to be; ten days is presumably enough). In Noel Canning, Justice Breyer wrote:
Finally, the Solicitor General warns that our holding may “‘disrup[t] the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.'” Brief for Petitioner 64 (quoting Morrison v. Olson(1988)). We do not see, however, how our holding could significantly alter the constitutional balance. Most appointments are not controversial and do not produce friction between the branches. Where political controversy is serious, the Senate unquestionably has other methods of preventing recess appointments. As the Solicitor General concedes, the Senate could preclude the President from making recess appointments by holding a series of twice-a-week ordinary (not pro forma) sessions. And the nature of the business conducted at those
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