U.S. Constitution Article II, Section 3, cl. 2 is having its moment in the sun. This clause says that the President
may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;
Lots of folks are suggesting that if the Senate is being difficult about confirming Biden’s cabinet – as many expect it will be – the response to this piece of unprecedented Constitutional hardball, would be … more hardball.
The idea is that the Speaker manufactures a disagreement about adjournment between the House and Senate. Biden then prorogues Congress for, say, 11 business days. And during those 11 days — in full compliance with the rather arbitrary 10-day minimum for an intra-session recess imposed by National Labor Relations Board v. Noel Canning — Biden would then use his recess appointment power, Art II, Section 2, para 3:
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.
Not a very Bidenesque thing to do, but it would teach Mitch McConnell not to jerk him around.
Note: By modern convention a ‘session’ of congress runs for a year from January to January the following year. So a commission that expires “at the end of the next session” would in the ordinary course last for the two-year life of the current Congress. I imagine it would take both houses to change that, but I don’t know for sure.