Why Trump’s Threat to Adjourn Congress Is Dubious

Why Trump’s Threat to Adjourn Congress Is Dubious

WASHINGTON — President Trump made another head-turning claim of executive power in the middle of a briefing about the Covid-19 pandemic — threatening on Wednesday to force Congress to adjourn so that he may unilaterally install judicial nominees and other officials who would typically require Senate confirmation.

No president has ever purported to do such a thing. Here is an explanation of the legal issues.

He wants to make recess appointments.

The Constitution — written at a time of travel by horse, when Congress could be in recess for lengthy periods with no ability for lawmakers to swiftly reconvene — creates an exception to the general rule that the Senate must confirm certain important officials before a president may appoint them to fill vacancies. When the Senate is in recess, a president may unilaterally appoint such officials to serve in those positions until the end of the next session of Congress.

Because even though the Senate is on an indefinite break amid the pandemic, it did not formally adjourn for a lengthy recess. Rather, it has been holding so-called pro forma sessions, in which a member from the Republican majority comes into the all-but-empty chamber every three days to bang the gavel.

This maneuver technically divides a long recess into a series of three-day breaks. The Supreme Court has ruled that those are too short for recess appointments.

Only in recent years has it become routine for the Senate to adjourn into three-day pro forma sessions, essentially nullifying the presidency’s constitutional recess appointment power.

Despite its anachronistic rationale, the Senate had long acquiesced to some presidential recess appointments while it was on lengthy breaks. But after President George W. Bush used the power to make several highly disputed appointments, Senate Democrats in 2007 started using the technique to prevent him from making any more end-runs around the confirmation process. When Barack Obama became president, Senate Republicans did the same thing to him, making the tactic bipartisan.

Yes, even though presidents hate it.

Mr. Trump denounced the tactic on Wednesday. “The current practice of leaving town while conducting phony pro forma sessions is a dereliction of duty that the American people cannot afford during this crisis,” he told reporters. “It is a scam, what they do, it’s a scam and everybody knows it.”

Mr. Obama felt the same way. In 2012, declaring pro forma sessions a sham, he purported to make several recess appointments during a lengthy Senate vacation. That led to a landmark Supreme Court ruling that unanimously rejected his move. The justices agreed that the Senate, not the president, gets to decide whether it is legitimately in session.

In theory, it could put the Senate into an official recess that is long enough for recess appointments.

The Constitution says that neither the House nor the Senate may adjourn for more than three days without the other’s consent, and if they disagree about the time of adjournment, the president “may adjourn them to such time as he shall think proper.”

This adjournment power is extremely limited because the founding fathers did not want presidents to have the kingly power to stop the work of legislators. One of their complaints in the Declaration of Independence was that Britain’s king “has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.”

But if the Senate does not confirm more of his nominees, Mr. Trump — at times using the royal “we” — threatened to force it to adjourn and then recess-appoint them.

No, so Mr. Trump would not seem to have this power available to him.

After passing the $2 trillion pandemic relief and stimulus package on March 25, and just before its members scattered, the Senate majority leader, Mitch McConnell, Republican of Kentucky, proposed going into three-day pro forma sessions. The Senate approved by unanimous consent.

The Senate did not ask the House to adjourn for a longer period, so there has been no opportunity for them to disagree.

The move to go into regular pro forma sessions has become routine when the Senate prepares to leave town. That is because under Senate rules, the minority party can indefinitely delay any up-or-down vote on a proposal to adjourn for more than a day, according to congressional aides, so there is no point in seeking a longer adjournment.

They could, in theory.

By a majority vote, Senate Republicans could first change the chamber’s rules to allow proposals to adjourn for lengthy periods to receive up-or-down votes, and then they could force approval for a recess sufficiently long enough for Mr. Trump to make unilateral appointments. Because the Democratic-controlled House would inevitably object, the two chambers would then be in an actual disagreement for Mr. Trump to resolve.

“The Senate should either fulfill its duty and vote on my nominees, or formally adjourn so I can make recess appointments,” Mr. Trump said, adding: “If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers of Congress.”

No, for two reasons.

First, while the Senate is operating in pro forma sessions, it may only conduct business by unanimous consent, so to change the rules, senators would have to risk traveling back to Washington anyway. Once back, the Republican majority could instead resume confirming Mr. Trump’s highest-priority nominees.

Second, it is far from clear that Mr. McConnell and other Senate Republicans would want to create a precedent that would effectively gut their own power over confirmations — especially given the possibility that a Democrat, former Vice President Joseph R. Biden Jr., may become president in nine months.

A spokesman for Mr. McConnell issued a statement saying the majority leader had spoken to the president and shared his frustration. But the statement notably did not express endorsement with the idea of engineering a presidential adjournment of the Senate and invoked the necessity of agreement by the Senate’s top Democrat, Senator Chuck Schumer of New York.

“The leader pledged to find ways to confirm nominees considered mission-critical to the Covid-19 pandemic, but under Senate rules, that will take consent from Leader Schumer,” the statement said.

It does not appear so. Democrats expressed puzzlement at the insinuation they had held up nominees for public health positions. Mr. Trump mentioned his desire that the Senate confirm pending nominees for director of national intelligence, the Federal Reserve board of governors, an assistant Treasury secretary, an under secretary of agriculture “responsible for administering food security programs” and the head of the Broadcasting Board of Governors.

No. Despite Mr. Trump’s expression of outrage at the amount of time the Senate takes to debate whether to confirm each of his judicial nominees, because of recent rules changes under both parties, the chamber has far more quickly and frequently confirmed his nominees than judges appointed by his recent predecessors.

In three years and three months in office, Mr. Trump has already appointed 51 judges on the regional courts of appeal. By comparison, Mr. Obama, Mr. Bush and Presidents Bill Clinton, George Bush and Ronald Reagan appointed an average of fewer than 32 such judges per each four-year term.

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