When is it normally customary for cabinet to resign? Do they submit their letter before and say effective J20 @12? If so, normal order could still be enough to prevent the appts since T presumably couldn't declare a recess until after J20 @12 at the earliest
Yes. And true.
Couldn't Trump just fire everyone the moment the recess is declared?
Sorry, for the back of the class -- what does "Biden have his cabinet resign" do?
The vacancies would be created before the recess. So, if SCOTUS adopts Scalia's concurrence in Noel Canning, those vacancies could not be filled by a recess appointment. At least that's what I got out of it.
The disagreement has to concern the “time of adjournment.” Does that mean the date they adjourn or the period of time adjournment lasts. At any rate, in case of such disagreement, the President can adjourn them to such time he thinks proper. Does that defeat the Senate’s ability to reconvene itself?
Ignore we were a bit confused
I think they're postulating that if the cabinet resigns early while the congress is clearly in session, then according to Scalia's concurrence, Trump would be unable to subsequently use his recess appointment power to fill those positions even if Congress is in recess, bc the vacancy predates recess
Ah, thanks!
Yeah but the vacancy occurring at noon on 1/20 would suffice because the linear progression of time means that Trump couldn’t make the appointment sooner.
Is the only way to challenge an invalid recess appt to challenge an action they take? Bc status quo says appt for vacancy pre-recess is ok. If this issue reaches high court again, interesting to see if they uphold Scalia conc (joined by Roberts, Alito, Thomas) and look just to the...
...text ("may happen"). Another test for whether they will apply originalism consistently regardless of who the parties are.