Republicans will control the White House and both houses of Congress come January. But President-elect Donald Trump’s intent to nominate loyalists to fill key Cabinet posts has set up a possible confrontation with the Senate, which has the constitutional responsibility for “advice and consent” on presidential nominees. Trump and his Republican allies are talking about going around the Senate and using temporary recess appointments, which last no more than two years. Invoking that authority could result in a fight that lands at the Supreme Court. Trump might also have to claim another, never-before-used power to force the Senate into a recess, if it won’t agree to one. Supreme Court has decided only one recess appointment case In its 234 years, the Supreme Court has decided only one case involving recess appointments. In 2014, the justices unanimously ruled that Democratic President Barack Obama’s recess appointments to the National Labor Relations Board were illegal. But they disagreed sharply over the reach of the decision. Five justices backed a limited ruling that held the Senate wasn’t actually in recess when Obama acted and, in any event, a break had to be at least 10 days before the president could act on his own. Justice Antonin Scalia, writing for the other four justices, would have held that the only recess recognized by the Constitution occurs between the annual sessions of Congress, not breaks taken during a session. That would have ruled out the appointments Trump may be considering after the new Congress begins in January and he is sworn into office. Conservatives’ previous rulings may offer clues Just two justices, Elena Kagan and Sonia Sotomayor, remain from the five-justice bloc that took the view that preserved the president’s power to make recess appointments during a session of Congress. Three others, John Roberts, Clarence Thomas and Samuel Alito, joined the Scalia opinion that would have made it virtually impossible for any future president to make recess appointments. The rest of the court has become more conservative since then, a result of Trump’s three high court appointments in his first term. Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have no record on this issue, which rarely arises in the courts. Nor does Justice Ketanji Brown Jackson, a 2022 appointee of Democratic President Joe Biden. There is tension between respect for precedent and original meaning A more conservative Supreme Court might come out differently today, though it’s by no means certain. Once the court decides a case, the ruling is regarded as precedent that is not lightly discarded. So even some justices who initially dissent from a ruling will go along in later cases on a similar topic. Scalia, an icon of the right, applied his originalist approach to the Constitution to conclude that there was little doubt what the framers were trying to do. The whole point of the constitutional provision on recess appointments, adopted in 1787 in the era of horse and buggy, was that the Senate could not quickly be summoned to fill critical vacancies, he wrote. Reading a summary of his opinion aloud in the courtroom on June 26, 2014, Scalia said the power to make recess appointments “is an anachronism.” The Senate always can be convened on short notice to consider a president’s nominations, he said. “The only remaining practical use for the recess appointment power […]