President-elect Donald J. Trump has singled out one former member of the Supreme Court as his judicial north star: Justice Antonin Scalia, a giant of the conservative legal movement who died in 2016.
“Justice Scalia was a remarkable person and a brilliant Supreme Court justice,” Mr. Trump said during his first campaign. “His career was defined by his reverence for the Constitution.”
Mr. Trump vowed “to appoint judges very much in the mold of Justice Scalia.”
But Mr. Trump strayed from Justice Scalia’s understanding of the Constitution earlier this month when he proposed using recess appointments to sidestep the Senate’s constitutional role of vetting and approving his nominees. The idea would have alarmed Justice Scalia.
That is not speculation or inference. Ten years ago, Justice Scalia anticipated the current dispute in a blistering 15-minute statement delivered from the bench after a five-justice majority ruled that many recess appointments made during congressional sessions were proper.
Without recess appointments, Mr. Trump said this month, “we will not be able to get people confirmed in a timely manner.”
That was scant reason to bypass the Senate, Justice Scalia said in 2014.
“Governing would be much simpler if the president could choose the people he wanted to fill certain offices without having to get a bunch of senators to agree,” he said. “But the point of the Constitution is not simply to make government run efficiently.”
The recess appointments clause is an anachronism, Justice Scalia said, a relic from an age in which travel involved horses and senators could be hard to find. These days, he said, “the only remaining practical use for the recess appointment power is the ignoble one of enabling presidents to circumvent the Senate’s role in the appointment process.”
Dissents summarized from the bench are rare, signaling profound disagreement. Justice Scalia’s statement was rarer still: a concurring opinion that agreed with the five-justice majority on the bottom line on the narrow question before the court but vehemently diverged from its reasoning.
The court’s decision had, Justice Scalia said, recklessly empowered future presidents “in diverse contexts, including those presently unimagined.”
Justice Scalia’s statement came on June 26, 2014, the next-to-last day of that term. The case, National Labor Relations Board v. Noel Canning, was a separation-of-powers blockbuster.
Justice Stephen G. Breyer, a liberal, announced the majority opinion, speaking for about 10 minutes.
He rejected President Barack Obama’s attempts to appoint nominees during breaks in the Senate’s work while it convened every three days in short pro forma sessions. But Justice Breyer added that such appointments generally remained permissible so long as they were made during breaks of 10 or more days.
Justice Scalia agreed with the first point. But he said the second one — now the basis for Mr. Trump’s plan — was lawless. “These new rules have no basis whatever in the Constitution,” he said. “They are just made up.”
The Constitution’s recess appointments clause says, “The president shall have power to fill up all vacancies that may happen during the recess of the Senate.”
That sentence contains two important limitations, Justice Scalia said. The reference to “the recess” means that recess appointments can be made only during breaks between Congress’s formal annual sessions and not during shorter breaks within sessions. And even then, “vacancies that may happen during the recess” means that the clause applies only to vacancies that arose during those breaks.
That understanding of the Constitution would thwart Mr. Trump’s plan. The majority’s view in the 2014 case would seem to allow it.
“The court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need,” Justice Scalia said in his written opinion, “into a weapon to be wielded by future presidents against future Senates.”
Justice Scalia even anticipated circumstances in which a president’s party has a Senate majority, as Republicans will for Mr. Trump. “Its members,” the justice said from the bench, “often are not motivated to resist encroachment by a president who is the leader of their own party.”
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. joined Justice Scalia’s opinion. All remain on the court, and there have been no indications that they have changed their minds.
The views of the other three conservative justices on today’s court are unknown, but they have all expressed deep admiration for Justice Scalia’s jurisprudence. One of them, Justice Amy Coney Barrett, served as his law clerk.
Of the five justices in the majority in the 2014 decision, on the other hand, only two are still on the court: Justices Elena Kagan and Sonia Sotomayor.
That math suggests that Mr. Trump’s plan would meet a chilly reception at the Supreme Court, assuming that the identity of the president involved did not figure in the justices’ thinking.
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