President-elect Trump has never come to an unlocked door that he didn’t want to blow up with dynamite. So I suppose it should come as no surprise that within days of being elected, he set up a major confrontation with the incoming Republican-controlled Senate that is eager to support him on nearly everything he says he wants to do.

Ed Whelan (here and here) and Andy McCarthy (here) have carefully walked through the constitutional arguments against Trump’s scheme to force the Senate into recess so he can appoint any of his nominees who otherwise couldn’t be confirmed, or could be confirmed but not quick enough for his liking. But it is worth emphasizing an additional point, which is that doing so wouldn’t even make sense from the perspective of achieving the end results that Trump claims to be seeking.

Recall that when the U.S. Supreme Court struck down President Obama’s recess appointments, the case came about because the National Labor Relations Board ruled against Noel Canning, a Pepsi bottler and distributor, and the quorum was made up of unconstitutionally appointed nominees. When the Supreme Court ruled against the Obama administration, it invalidated the NLRB’s ruling against Noel Canning, and forced the reconsideration of over 100 cases that had been decided by the illegally appointed board members.    

Now, imagine what could potentially happen if Trump were to appoint Matt Gaetz and Robert F. Kennedy Jr. by an unconstitutional maneuver. Were an Attorney General Gaetz to, say, fire a host of Department of Justice officials he deemed part of the “deep state,” those officials would likely have standing to sue on the basis that his appointment was unconstitutional. Were RFK Jr., acting under an unconstitutional recess appointment, to use the broad regulatory powers of the secretary of the Department of Health and Human Services to issue sweeping new rules, a number of parties could seek to have those tossed aside. Just off the top of my head, those could include food and drug companies, states, hospitals, doctors, insurers, etc. I’m sure there are plenty of other actions that could be challenged and plenty of lawyers available for such challenges.

Trump, of course, may have other objectives in going to war against the Senate, and pitting Republicans in the House and Senate against each other right out of the gate, than advancing a coherent agenda.