On Sunday, we gamed out four scenarios that could, however unlikely, put Judge Merrick Garland on the Supreme Court this year. The scenarios centered on Senate Republicans, for one political reason or another, changing their minds and reversing course from their blockade of even considering President Obama's nominee.
But there is actually a fifth scenario: a recess appointment. Here, the impetus for action would sit with Obama, who could wait until the Senate breaks for at least 10 days and then jump over Congress entirely by appointing Garland to the bench unilaterally.
If it sounds far-fetched, that's because it is. Such a scenario would only occur if a Democratic president won but Republicans held the Senate. And even then, a recess appointment would raise so many prickly practical, legal and political questions (many of which we'll outline below) that you could argue that the drama wouldn't be worth it for Obama or his successor.
We should also note that Obama has shown zero inclination to exercise this option. When Justice Antonin Scalia died suddenly in February, the Senate was in the middle of a 10-day recess. Obama officials said then the president had no plans to push through a nominee during the Senate's recess.
But as we wrote Sunday, never say never. Plus, several of our readers asked whether this could be a scenario that could put Garland on the court. The answer is yes, with a whole bunch of caveats. So here's how it would work — and why it probably won't happen.
Yes, Obama has the authority for a recess appointment
There's actually a "Recess Clause" in the Constitution (Article II Sec. 2) that reads: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
And this has been used before. In 1956, President Dwight D. Eisenhower used that authority to appoint William Brennan to the Supreme Court less than a month before the presidential election. A few years before that, he had appointed Chief Justice Earl Warren to the court when the Senate was in recess. In both cases, the Senate later confirmed those justices.
But the courts have made it more difficult
Obama has made recess appointments before that have come back to bite him (though none to the judicial branch).
In 2014, the Supreme Court overturned Obama’s three recess appointments to the National Labor Relations Board. In doing so, the court gave the Senate a wide latitude to decide when it considers itself to be in recess and when it's out. Today, a recess has to last at least 10 days before the president can legally make an appointment.
The court also okayed the Senate's use of "pro forma" sessions, which are aimed at preventing a president from making recess appointments. In a pro forma session, the Senate can gavel into Congress for as little as a few minutes — with no legislative business being conducted — and claim it has been in session.
And the Senate is indeed expected to stay in either actual session or a pro forma session for the rest of the year, given the high-stakes vacancy on the Supreme Court.
Case in point: The Senate is actually technically on a 10-day break right now; almost all lawmakers are back home. But Senate Majority Leader Mitch McConnell (R-Ky.) has asked a few senators to stay behind or travel back to Washington to bang the gavel every few days, ensuring that the Senate is, technically, in session.
All eyes would turn to January
The most likely time for Obama to make a recess appointment would be in January, when there's a new session of Congress.
Josh Chafetz with Cornell Law says that there's a conceivable legal opening for the president to appoint someone to the court when the old Congress is on its way out and the new Congress on its way in. In 1903, President Theodore Roosevelt made some 160 recess appointments while the Congress was switching from old to new, even though it was out of session only briefly.
It's unclear whether the 10-day requirement includes Congress's switch in January, Chafetz said.
And this would only work if the politics were just right
The politics to make a recess appointment feasible would have to be a perfect storm as well. If Obama is handing the White House over to a Republican, there's no point for him to make an appointment, since the new president could simply nominate someone else.
Obama would likely only have incentive to make a recess appointment if he knew Republicans were in control of the Senate and Hillary Clinton was about to enter the White House. Maybe then he'd calculate that this brief moment in January will be his and Clinton's only window to fill the vacancy.
Adding to all the uncertainty is the fact that recess appointments are temporary: A justice installed in a recess appointment can only serve until the end of the next session of Congress (unless the Senate gavels back into session and agrees to confirm the justice), so a January 2017 appointment would serve until January 2019.
Plus, Obama basically blowing off Congress in his final days on one of the most hotly contested political issues of the day would be like launching a grenade at a party and then walking away; it would pretty much destroy what little working relationship Democrats and Republicans have going forward — probably not something a Democratic president-elect like Clinton would want.
"It's hard to imagine Obama would want that hornet's nest on his way out of office for the relatively limited benefit he would get," Chafetz said.
We repeat that Obama has given no indication he'd be open to such a divisive move. After all, he has nominated a moderate judge, suggesting he wants to work with Republicans rather than over them.
All that is why a recess appointment is the least likely scenario we can envision to put Garland on the court. But it was fun to game this all out to better understand why.