He understands that he’s going nuclear on McConnell, not Pelosi, by suggesting this, right?
If you’re confused by the idea of the president adjourning Congress, well, no one would blame you. Even Obama didn’t propose this when he got swatted down 9-0 by SCOTUS in the famous Noel Canning decision on recess appointments.
Watch the clip, then read on.
President Trump: "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 I will exercise my constitutional authority to adjourn both chambers…" pic.twitter.com/jR7yd8xEnG
— CSPAN (@cspan) April 15, 2020
He’s referring to Article II, Section 3, which does give the president power to convene or adjourn under certain conditions, on “extraordinary occasions.”
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.
Is this an “extraordinary occasion”? Arguably, sure — global pandemic, uncertainty as to when it’ll be safe for Congress to reconvene in the flesh. SCOTUS might let him slide on that part. As I read Section 3, though, McConnell and the Senate would have to move to adjourn on their own initiative before Trump could get involved in the process and force an adjournment. The president plays a role only if the House and Senate both want to adjourn but can’t agree on the timing. (Article I, Section 5 says that “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days…”) He gets to settle the timing dispute between them.
But first there needs to be a dispute. Right now the Senate is holding daily pro forma sessions; those sessions count to block the president from making recess appointments. That was the holding in Noel Canning: “[T]he Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.” So long as McConnell doesn’t want to adjourn, Trump has no power to force him to. That 9-0 ruling was one of the better decisions of the Obama era in how it preserved the legislature’s authority over its own process. Today Trump called pro forma sessions a “scam” because they’re now a thorn in his side.
Imagine how absurd it would be if the president could force Congress to adjourn at will. He’d be able to fill vacancies with recess appointments anytime he liked, provided, I guess, that he could convince the courts that it was an “extraordinary occasion.” Allowing a self-styled strongman like Trump to adjourn Congress “to such time as he shall think proper” would be especially dangerous in a national crisis given his pretensions to “total” authority and dubious emergency powers. The Senate could willingly hand him that authority by moving to adjourn and then squabbling with the House over the duration of the adjournment, but Trump can’t seize it. And if you don’t like that, imagine President Joe Biden trying it and see how much you like it then.
Jonathan Turley is not a fan of this idea:
The President just said that he may unilaterally adjourn Congress. This seems to be a reference to Article II, Section 3, which gives a president in “extraordinary occasions” to convene or adjourn the Houses. This power has never been used and should not be used now . . .
— Jonathan Turley (@JonathanTurley) April 15, 2020
Neither is Trump nemesis Justin Amash, who reads the Adjournment Clause the same way I do:
Without one chamber participating in this improper scheme, this action would be unconstitutional. The president has no general, unilateral power to adjourn Congress. He may do so only in the limited “Case of Disagreement between them, with Respect to the Time of Adjournment.” https://t.co/9LkZ7309Ca
— Justin Amash (@justinamash) April 15, 2020
Ramesh Ponnuru asks a good question. Did Trump blindside McConnell by floating this idea publicly? Conceivably he asked McConnell to adjourn, which would potentially trigger presidential involvement, and McConnell said no. Trump may have then decided to play hardball by launching into this spiel at today’s briefing. (Which, as a reminder, is supposed to be about the coronavirus epidemic.) McConnell normally complies with Trump’s wishes but he’d have reason not to go along this time:
It might enable the appointment of some nominees McConnell greatly favors, such as Judge Walker. But it might also enable the appointment of people he silently opposes and can use lack of majority support to keep out of government.
— Ramesh Ponnuru (@RameshPonnuru) April 15, 2020
If McConnell hands Trump a blank check on recess appointments, he’s going to end up with Roy Moore on a federal circuit court somewhere.
Even if he wanted to adjourn, there’s a minor problem there:
The Senate could always try to change that. But a motion to adjourn would be subject to cloture—meaning it would need at least 7 D votes.
The majority could get *rid* of cloture by a simple majority, but I have to think this would be a bridge too far for at least 4 R senators.
— Steve Vladeck (@steve_vladeck) April 15, 2020
McConnell would need Democratic help to move to adjourn. Think the Dems are going to do that and give Trump carte blanche on recess appointments?
Exit question: If Trump wants to speed things up on the Senate rubber-stamping his judges, why doesn’t he call on them publicly to approve remote voting by senators? That would be politically popular and it would move the judicial conveyor belt along.