Trump’s Novel End Run Is Unconstitutional

Created
Sat, 07/12/2024 - 10:00
Updated
Sat, 07/12/2024 - 10:00
In the Atlantic (gift link) Law professors  Akhil Reed Amar, Josh Chafetz, and Thomas P. Schmidt analyze Trump and Co’s nefarious plan to circumvent the Senate’s advise and consent role: The Senate’s check on the president can of course lead to friction and frustration at the start of an administration, while a new president’s nominees are considered and sometimes even rejected by the Senate. Advice and consent takes time. But as Justice Louis Brandeis famously observed, checks and balances exist “not to promote efficiency but to preclude the exercise of arbitrary power.” The purpose of the Constitution “is not to avoid friction” but “to save the people from autocracy.” Trump would prefer that the Senate agree to recess so that he can install the rogues gallery of drunks, traitors, rapists and freaks to the cabinet positions he needs to wreak revenge on his enemies. So far, it doesn’t seem that the Senate is willing to go along, preferring to maintain their prerogatives. For now, at least. But Trump has a Plan B, which I’ve written about before. The authors say it’s unconstitutional on its face: [S]ome House Republicans have begun to discuss a more extreme scheme, one Trump considered during his first term: Trump could instead send the Senate home against its will and fill the government during the resulting “recess.” This is flagrantly unlawful. How, one might ask, would such a plan even work? After all, the president, unlike an absolute monarch, does not have the power to dismiss Congress whenever he wants. Three of…