Trump Threatens To Adjourn Congress

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.

Originally published on The Resurgent

We Aren't In A Constitutional Crisis. We're In Several.

House Speaker Nancy Pelosi said this week that she agrees with House Judiciary Chairman Jerry Nadler that the United States is undergoing a constitutional crisis due to Attorney General William Barr’s refusal to provide an unredacted version of the Mueller report to Congress. Pelosi is correct that the US is in a constitutional crisis – a series of constitutional crises to be exact – but not in the way that she means.

There have been many explanations of why the Democrats are off base with their contempt vote against Barr so I won’t cover that ground here except to say that Barr is following the law in his actions. Certain parts of the report cannot be released because federal law prohibits it. President Trump’s claim of executive privilege, which will most likely only last until Barr can ready a more lightly redacted version of the report for congressional distribution, is justified in this case.

When it comes to the congressional request of President Trump’s tax records, the shoe is on the other foot. The IRS code requires the Treasury Secretary to provide certain congressional officials with any taxpayer’s return and tax information. Nadler has provided a legitimate, if contrived, reason for the request, but Secretary Mnuchin has refused to comply. Since the request falls under congressional oversight of the executive branch and the separation of powers specified in the Constitution, Mnuchin’s refusal could be considered as fomenting a constitutional crisis.

Yet the congressional fishing expedition with respect to Trump’s personal financial data is transparent. Even though House Democrats are acting within the law with respect to the subpoenas of Mnuchin and Trump’s tax returns, their unspoken rationale of finding dirt, possibly criminal wrongdoing, on the president or simply using the information to embarrass him is outside the scope of congressional powers. Congress has rights to the information for certain reasons but not for the purpose of seeking revenge on the president. Nevertheless, “because it will embarrass the president” is not a legal ground to refuse a legitimate congressional request. If Congress abuses its authority to oversee the president then that is also a constitutional crisis.

A third constitutional crisis regards President Trump’s tariff war. The first salvo in the trade war was fired on March 1, 2018, when the president announced his intention to impose protective tariffs on steel and aluminum. The tariffs were imposed under section 232 of the Trade Expansion Act of 1962 which allows the president to impose national security tariffs. While the rationale was doubtful given the strength of the US steel and aluminum industries, a court did declare these tariffs constitutional earlier this year. Further, CNN pointed out that under a series of laws such as the Trading with the Enemy Act of 1917, the International Emergency Economic Powers Act of 1977, and the Trade Act of 1974, the president has almost unlimited authority to declare tariffs without congressional approval.

The constitutional crisis, in this case, is that Congress has abrogated its authority to “lay and collect taxes, duties, imposts and excises” under the Constitution. Congress has delegated this important power away to the president and the country is now feeling the effects of congressional impotence. Congress needs to reclaim this authority, if not now, then soon after President Trump leaves office.

Yet another constitutional crisis concerns the internal Department of Justice memo that prevents indictment of a sitting president. The special counsel’s decision to abide by the DOJ policy and then pointedly state that he could not say that Donald Trump did not obstruct justice left America in limbo. The claim of “no collusion, no obstruction” is obviously incorrect, but as yet there is no resolution to the president’s unethical, quasi-illegal behavior. The president should not be above the law. If he committed an act that would be a crime for an ordinary, nonpresidential American then he should be prosecuted just as they would. The DOJ memo was intended to prevent baseless persecution of the president by the opposition, but it unintentionally created a Get-Out-of-Jail-Free card for presidents without respect for the rule of law.

Next is President Trump’s decision to declare a national emergency to bypass Congress. When the emergency was announced in February it was big news, but this crisis has since been forgotten with the onset of a number of succeeding scandals. Yet the national emergency is a constitutional crisis that undermines the very existence of Congress. Under President Obama, Republicans were adamant that the House had the “power of the purse,” but now most feel that it is fine for President Trump to ignore a Congress that won’t do his bidding. Regardless of whether building the wall is a good idea or not, claiming a national emergency to procure funds for it against the express will of Congress is a horrible precedent, but one that is sure to be repeated by future presidents if it is not quashed by either Congress or the courts.  

The final constitutional crisis (at least so far) is Congress’s failure to rein in the imperial presidency. Donald Trump figures prominently in many of the ongoing constitutional crises but not all are unique to him. For example, Barack Obama’s executive decisions on DACA usurped congressional authority and his executive agreement with Iran undercut the Senate’s constitutional role of ratifying treaties. The abdication of congressional authority to levy tariffs goes back decades. The presidency will continue to become ever more powerful unless Congress takes steps to assert itself.

A major part of the problem is that congressional partisans have an attitude that the end justifies the means. Partisans of both sides refuse to hold their own presidents accountable because they like the results of their expansion of executive power. Democrats approved of Obama’s DACA deal and Republicans love Trump’s national emergency. If Congress is going to successfully limit presidential authority, it will require both sides to cross the aisle and work together to uphold the constitutional limits on the executive branch.

Reaching across the aisle is often considered traitorous these days, but the Congress has a higher duty to the Constitution than to the political parties. If Congress doesn’t act to defend the Constitution, presidents of both parties will keep chipping away at it until there is no need for the legislative body at all.

Benjamin Franklin famously said at the close of the constitutional convention that the delegates had decided on “A Republic if you can keep it.” The slow erosion of congressional authority shows that the struggle to keep the Republic must go on.

Originally published on The Resurgent