President Donald Trump on Wednesday invoked the possibility of taking the extraordinary act of forcing an adjournment of Congress in order to make recess appointments.
The president called the use of pro forma sessions — gaveling the Senate in-and-out once every three days to fulfill the constitutional requirement for convening — while blocking recess appointments to Senate-confirmed positions a “scam.”
Speaking at a daily press briefing with members of the coronavirus task force, Trump said that he needed positions requiring Senate confirmation filled in relation to the response to the current pandemic.
“The Senate’s practice of gaveling into so-called pro forma sessions when no one is even there has prevented me from using the constitutional authority that we’re given under the recess provisions,” the president said in the Rose Garden Wednesday. “The Senate should either fulfill its duty and vote on my nominees or it should formally adjourn so that I can make recess appointments.”
Adjournment resolutions must be adopted by both chambers of Congress, and with Speaker Nancy Pelosi leading a Democratic-controlled House, it is almost unthinkable that such a resolution would be adopted there.
“If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers of Congress,” Trump said. “The current practice of leaving town while conducting phony pro forma sessions is a dereliction of duty that the American people cannot afford during this crisis.”
No president has ever forced Congress to adjourn when the two chambers fail to reach consensus on adjournment, but the power does exist under the Constitution.
If the House and Senate disagree on the time of adjournment, the Constitution says that the president may, “adjourn them to such Time as he shall think proper.”
The Supreme Court has been clear on the validity of the pro forma sessions that Trump referred to as a scam, siding with the interpretation of Senate Republicans over President Barack Obama back in 2014.
“For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business,” the Court held in NLRB v. Noel Canning, which contested the validity of actions taken by the National Labor Relations Board with members ostensibly installed by Obama’s recess appointments.
With a Republican majority in the Senate, it was ultimately the decision of Majority Leader Mitch McConnell that it was best to not keep the Senate in session conducting debate-limiting cloture votes on Trump nominees during the health crisis.