Angry that the Senate is not confirming his appointees fast enough, President Trump yesterday threatened to adjourn Congress so that he could push through recess appointments.
“As the entire US government works to combat the global pandemic, it is absolutely essential that key positions at relevant federal agencies are fully staffed, and we’re not allowing that to take place through our Congress,” Trump said at Wednesday’s coronavirus briefing. “They’re just not giving it to us. We have many positions that are unstaffed because we can’t get approval.”
The president said that there were 129 appointees “stuck in the Senate because of partisan obstruction.” Under the “nuclear option” invoked first by Harry Reid and then by Mitch McConnell, executive branch and judicial nominees cannot be filibustered but senators can still block confirmation votes for other appointees.
Majority Leader Mitch McConnell had previously announced that the Senate would hold pro-forma sessions until May 4. The president now sees this as an opportunity to try an unprecedented tactic.
“If they don’t act on getting these people approved that we need because of the, we need them anyway but especially because of the pandemic, we are going to do something that will be, something that I’d prefer not doing but which I should do and which I will do if I have to,” Trump said.
“The Constitution provides a mechanism for the President to fill positions in such circumstances,” Trump continued. “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 we’re given.”
“If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both Chambers of Congres,” the president explained. “The current practice of leaving town while conducting phony, proforma sessions is a dereliction of duty that the American people cannot afford during this crisis. It is a scam. What they do. It’s a scam and everybody knows it, and it’s been that way for a long time, and perhaps it’s never done before. It’s never been done before.”
The Constitution gives the president the power to fill vacancies that occur while the Senate is not in session. Those recess appointments expire at the end of the next Congress. However, if the Senate never recesses, the president cannot make recess appointments.
Other presidents have also bridled at the Senate’s pro-forma sessions aimed at preventing recess appointments. Barack Obama made several recess appointments in 2012 while the Senate was conducting pro-forma sessions. The Supreme Court ruled those appointments unconstitutional in a 9-0 decision.
Now President Trump threatens to go a step further than Obama’s overreach. The president’s word salad apparently refers to Article II Section 3 of the Constitution, which gives the president the authority to adjourn Congress in certain circumstances. The provision has apparently never been used before.
Article II Section 3 reads:
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he 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; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The problem with Trump’s strategy is that the president’s power to adjourn the houses of Congress is contingent upon a “Disagreement between them, with Respect to the Time of Adjournment.” The House and the Senate have not had a disagreement over when to adjourn. Both bodies have agreed to remain in session.
It is also unusual for a president to disagree with the Senate over recess appointments when his own party is in control. The Washington Examiner reported that Majority Leader Mitch McConnell had spoken with Trump about the appointments prior to the president’s threat, but, perhaps recognizing the horrible precedent that another nuclear option would set, McConnell does not want to cut Democrats out of the confirmation loop.
“Leader McConnell had a conversation today with the president to discuss Senate Democrats’ unprecedented obstruction of the president’s well-qualified nominees and shared his continued frustration with the process,” a McConnell spokesman said. “The Leader pledged to find ways to confirm nominees considered mission-critical to the COVID-19 pandemic, but under Senate rules will take consent from Leader Schumer.”
It appears unlikely that McConnell will appease the president by declaring an adjournment so that Trump can make recess appointments. Although McConnell is a Trump ally, he does have his limits.
President Trump’s shot across the Senate’s bow yesterday was similar to the threats he made to use national emergency authority to bypass Congress on funding for the wall last year. For several weeks prior to declaring the emergency on the border, Trump similarly telegraphed his belief in an “absolute right” to use emergency authority to appropriate funds where Congress had declined to act.
I have no doubt that President Trump’s threat to adjourn Congress – or to try to do so – is not an empty threat. The question is whether Senate Republicans would stand idly by while the president usurps their own congressional authority yet again and comments yet another constitutional crisis.
As I wrote earlier this week, President Trump’s actions betray the fact that he truly believes that he has “total authority” to do whatever he wants. The president’s abuses of executive power have become increasingly blatant and more serious over the past four years. His threat to force an adjournment of Congress to advance his own agenda is the stuff of banana republics and should be vigorously opposed by both parties. If Congress is not up to the task, it will be up to voters to defend the Constitution.
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