Category: Attack the Legislative

At his coronavirus press conference on Wednesday, President Donald Trump issued a stunning threat-slash-promise-slash-constitutional fantasy. Complaining that Democrats were blocking his judicial appointees, the president said that the Senate should either end its current pro forma session and come back to Washington amidst a pandemic to approve his appointees or officially adjourn so that he can make recess appointments. “The Senate has left Washington until at least May 4,” Trump said. “The Constitution provides a mechanism for the president to fill positions in such circumstances, the recess appointment it’s called. The Senate’s practice of gaveling into so-called pro forma sessions where no one is even there has prevented me from using the constitutional authority that we’re given under the recess provisions. The Senate should either fulfill its duty and vote on my nominees or it should formally adjourn so that I can make recess appointments.”

“If the House will not agree to that adjournment,” he continued, “I will exercise my constitutional authority to adjourn both chambers of Congress. The current practice of leaving of town while conducting phony pro forma sessions is a dereliction of duty that the American people cannot afford during this crisis. It is a scam what they do.”

Trump is likely referencing Article 2, Section 3 of the Constitution, which provides that the president can “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.” Does he have the power to actually do this, though? According to this 1964 article from the New York Times the Senate Parliamentarian issued an opinion in that year, regarding presidential authority to adjourn Congress: “The answer is yes—but only under, certain unusual circumstances. These conditions are so limited that a President has never exercised the power to adjourn Congress.”

The clause as written seems to require that the president can only force the Senate to adjourn “in Case of Disagreement between them,” which suggests that it operates in cases where the House and Senate disagree about a date for adjournment. But the House and Senate have already agreed on a date: Jan 3, 2021.

Trump, it seems, needs Senate Majority Leader Mitch McConnell and a majority of Senators to come back to Washington to adjourn the Senate, which would then trigger a disagreement with the House of Representatives, as Speaker of the House Nancy Pelosi would presumably then refuse to adjourn. On Wednesday, McConnell’s office said that he had spoken with Trump about the recess appointment question, but also indicated that he would not be altering Senate rules to get Trump his appointments. If McConnell were to adjourn along a party-line vote—possibly blowing up the filibuster in the process—theoretically, Trump would then adjourn the two disagreeing bodies. Recess appointments under this scheme would last only until January of 2021, but it would still be an unprecedented power grab. As historian Michael Beschloss tweeted, “Wilson, Taft and FDR were all urged to adjourn Congress and all refused.”

“They know they’ve been warned and they’ve been warned right now,” Trump said. “If they don’t approve it, then we’re going to go this route and we’ll probably be challenged in court and we’ll see who wins.”

Indeed, if Trump did manage to get Senate Republicans to go along with this plan, one wonders what the conservative-controlled Supreme Court might do. In 2014, the Supreme Court validated the legitimacy of holding pro forma sessions for the purpose of preventing recess appointments in NLRB v. Noel Canning, but that case did not involve the use of this unprecedented mechanism by a president. It would be challenged on a number of fronts.

“It is unclear that we have an extraordinary occasion in the sense that the Framers were using it,” University of Richmond School of Law Carl Tobias told me in an email. “It is not surprising that the provision has never been invoked, because no president has ever found the existence of an extraordinary occasion that warranted exercise of this power, even [though] the [United States] had the Civil War and two declared World Wars, while the House and Senate have always been able to agree on a time to adjourn.”

It’s possible that the move is also just intended as a feint to distract from Trump’s disastrous response to the COVID-19 pandemic and the spiraling economy. “Trump desperately wants to change the subject—away from the pandemic he’s so badly handled that’s killing Americans and toward this,” Georgetown Law professor Josh Geltzer told me. “It’s important to explain why he is out of step with American constitutional traditions. But it’s also important not to let him change the focus at this critical time.”

Ultimately, the real concern is that someone has advised President Trump that he has the power to adjourn Congress and he’s building an argument for it; his White House Counsel and Justice Department are doubtless crafting the fanciful legal scaffolding right now. As is often the case when the president makes broad claims about untested constitutional authority, the worry is less that he will adjourn Congress tomorrow, and more that he is recreationally floating insane notions, bolstering them with in-house analysis, and laying the groundwork for emergency powers he may someday seek in earnest. It’s happened before and there is no reason it can’t happen again.

[Slate]