Questions over whether he can actually do it, and why this isn't just another recess appointment:
For the second time this week, President Trump generated needless constitutional confusion Wednesday by suggesting he might use his extremely limited power to adjourn Congress in a circumstance in which it clearly isn’t applicable. Bemoaning his inability to push through “recess appointments” he said:
“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. We have a tremendous number of people that have to come into government, and now more so than ever before because of the virus, and the problem. We have to do it. And we have to do whatever we have to do.”
Just like his ill-conceived boast Monday, that he has “absolute power” and that his “authority is total” to override local and state governments to order schools and businesses to reopen before the coronavirus pandemic has ebbed, his adjournment threat was hollow.
Leave aside that the president’s own party controls the Senate and has assented to the current legislative calendar. Trump’s argument is legally implausible, practically moot and another example of his attempts, guilefully or not, to move the Overton window on constitutional debate. He’s misreading the letter of the Constitution, and the spirit — even in a crisis, the founding document’s central purpose is to thwart the autocratic instinct “to do whatever we have to do.”
Taking the law first. Article II, Section 3 of the Constitution provides that the President “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.” What may not be clear from this text, but is abundantly clear from the Constitution’s context, is that the adjournment power was meant to limit the president — to confine to exactly one circumstance the power to send Congress home prematurely.
As Alexander Hamilton wrote in The Federalist No. 69, “a British monarch may prorogue or even dissolve the Parliament,” and a governor “may also prorogue the legislature of this State for a limited time, but “The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment.” Thinking especially of the example of King Charles I, the Founders were wary of how British kings had dissolved parliaments with which they disagreed, and saw limits on the adjournment power as indispensable to protecting Congress’s authority as a coordinate branch of government. And the power was only necessary in this extreme case because, under Article I, Section 5, “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.” In other words, only when the two chambers couldn’t agree among themselves on a date for adjournment could the president step in and fill the gap.
That’s why the adjournment power has never been used in our history — not “perhaps” never, as Trump said — not ever. The reason is not just that, even when controlled by different parties, the House of Representatives and the Senate are usually able to agree in advance on adjournments; it’s also that, even when they don’t, one chamber can spoil the president’s power by simply (if begrudgingly) going along with the other. It’s also increasingly anachronistic: Whereas Congress used to take long, formal recesses between its sessions, it has, for more than a half-century, typically remained in session from Jan. 3 through the conclusion of all legislative business (which, in recent years, has run nearly until the next Jan. 3). Simply put, it would take both a remarkable abandonment of tradition from Senate Republicans, and a refusal to go along from House Democrats for the president to even be in position to formally adjourn Congress. And before any of this happens, Congress would, more than a little ironically, have to return to Washington — and the Senate would have to vote to change the adjournment schedule.
The constitutional law aside, this measure wouldn’t make practical sense: As Trump would be the first to tell you, he’s been wildly successful in getting his judicial appointees confirmed by the Senate. He has also, gleefully, relied heavily on his ability to name “acting” officers to many vacant senior government positions rather than making permanent nominations to various posts. “It gives me more flexibility; do you understand that? I like ‘acting,’” he said last year. To take just one example, last Friday marked one full year without a Senate-confirmed secretary of homeland security — a position that plays a critical role in the response to a pandemic — and no nominee has been named. Adjourning Congress as a means to getting appointments pushed through may therefore be a solution in search of a problem.
The recess appointment power exists so a president can fill key posts when Congress isn’t in session. It’s not meant to supplant the Senate’s advise-and-consent role, as Trump seems to want to do, and it’s not operable when the Senate is technically in session. A recess-appointed executive branch officer who serves at the pleasure of the president can simply be fired by the current president, or the next one. (And, in any event, the recess appointee only serves until the end of the next session of Congress.) Meanwhile, if Trump could and actually did adjourn Congress now, he’d be responsible for having sent Congress (and its power of the purse) home in the middle of a growing economic crisis and the worst public health crisis this country has faced in over a century — all with elections right around the corner.
Just like Trump’s claim of “total” power over states, his threat to adjourn Congress is empty, both formally and functionally. That doesn’t mean, however, that it should be ignored. Congress must push back, not only to set the record straight about what the Constitution allows (and why) and to protect its prerogatives as an equal branch of government, but to make it harder for Trump to repeatedly muddy the constitutional waters by suggesting these questions are open for debate. They aren’t.
