Trump Threatens to Adjourn Congress So He Can Make Recess Appointments - Does POTUS Have that Power?

What’s the story?

• At a press briefing on Wednesday, President Donald Trump threatened to force Congress to adjourn in order to make recess appointments to fill vacant executive branch positions. Trump said:

“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 of Congress. 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.”

• Also on Wednesday, a spokesman for Senate Majority Leader Mitch McConnell (R-KY) said he would “find ways to confirm nominees considered mission-critical to the COVID-19 pandemic, but under Senate rules that will take consent” from Senate Minority Leader Chuck Schumer (D-NY).

What does the Constitution say about all this?

• There are several portions of the Constitution that are relevant to the debate over congressional adjournment & recess appointments.
• Under Article I, Section 5 of the Constitution, the House & Senate cannot adjourn without the consent of the other for more than three days.
• Article II, Section 2 of the Constitution gives the president the power to make recess appointments to fill vacancies that occur during a Senate recess. 
• Article II, Section 3 of the Constitution states 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 until such time as he shall think proper”.

What does past precedent say about a president forcing Congress to adjourn? Could it happen now?

• No president has ever invoked the Article II, Section 3 power to adjourn Congress, although Presidents William Taft, Woodrow Wilson, and Franklin Roosevelt were encouraged to do so but declined, according to historian Michael Beschloss.
• The House & Senate have agreed to an adjournment date for the second session of the 116th Congress ― January 3, 2021 ― so at present there isn’t a disagreement between the two chambers that would allow the power to be invoked.
• Hypothetically, one chamber could move to adjourn at a different time, thus creating a disagreement between the two chambers that would allow the president to intervene.
• While in theory the effort could succeed, a legal challenge would be a near-certainty given it would be the first use of this constitutional authority.

How do recess appointments work?

• The president can make appointments to fill vacancies that occur while the Senate is on recess. Recess appointments only last until the Senate adjourns its next session.
• In 2014, the Supreme Court heard a case known as NLRB v. Noel Canning, which concerned the validity of two recess appointments made by President Barack Obama to the National Labor Relations Board when the Senate was using pro forma sessions to avoid going on a technical recess.
• In a unanimous 9-0 opinion, the Supreme Court decided that the three-day break between pro forma sessions isn’t a significant interruption of legislative business, and that the Senate retains its capability to carry out such business during them. 
• Both Justice Stephen Breyer’s majority opinion and Justice Antonin Scalia’s concurring opinion agreed that the president could use adjournment power under Article II, Section 3 to facilitate recess appointments.
• The use of pro forma sessions has greatly reduced the frequency of recess appointments. For example, President George W. Bush made 171 recess appointments, while President Barack Obama made 32 and President Donald Trump hasn't made a single recess appointment to date in his presidency.
• Only one president went their entire presidency without making a recess appointment, and that was William Henry Harrison who died one month into his term.

How do pro forma sessions in Congress work?

• Typically, pro forma sessions only last for a few minutes and no controversial business is transacted. 
• There are usually only a few lawmakers in attendance, including one to serve as the presiding chair and at least one each to represent the majority and minority party on the floor. They’re joined by the chamber’s floor staff, but otherwise the chamber is relatively empty.
• At the moment, both the House & Senate are technically still in session and haven’t adjourned for a formal recess. Each chamber is scheduled to hold periodic pro forma sessions at least once every three days until May 4th, when both are scheduled to return for regular legislative business.
• During the 2020 pandemic caused by coronavirus (COVID-19), pro forma sessions in Congress have been particularly prominent as lawmakers have largely remained in their districts practicing social distancing. A lengthy House pro forma session was used to unanimously pass corrections to the “phase 2” coronavirus relief package in March, while there was an unsuccessful effort to add funding to the Paycheck Protection Program during a Senate pro forma session in April.

— Eric Revell

(Photo Credit: White House via Flickr / Public Domain)