April 20, 2020

Adjourning Congress

“Citing the coronavirus, Donald Trump is threatening unprecedented action — adjourning both houses of Congress — to entice the Senate to approve more of his nominees… The Constitution does not spell out a unilateral power for the president to adjourn Congress. It states only that he can decide on adjournment if there is a dispute over it between the House and Senate. Such a disagreement does not now exist.” AP News

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From the Left

The left argues that Trump’s complaints about Democrats delaying his nominees are incorrect and is critical of his proposal to adjourn Congress.

“Republicans hold a 53-to-47 majority, and also win tie votes because they hold the vice presidency. That means they have majorities in every committee, and they schedule final confirmation votes for every nominee who clears those committees. To be sure, Democrats can still stall this procedure… for two hours… [Trump’s] complaint is entirely untrue: Democrats aren’t blocking his executive-branch nominees… Of the 750 or so most important positions needing Senate confirmation, only 82 are currently under consideration. Of those, only a small number have been cleared by committee and are awaiting a floor vote. A much larger group, 165 in all, are still open because Trump hasn’t nominated anyone…

“Despite what the president says, that’s not a lot of current nominees before the Senate by historical standards. And of course some of them were just recently nominated. All the rest are in limbo because of either Republican opposition or Republican indifference. Trump’s grievance, to the extent he has one, is with Senate Majority Leader Mitch McConnell and the Republicans. Not Democrats.”
Jonathan Bernstein, Bloomberg

“On its face, Trump’s argument for doing this is absurd. The compliant Republican-controlled Senate has confirmed most nominees this president has put forth. Yet some of the most critical positions in the government — including the secretary and deputy secretary of the Department of Homeland Security — remain without a confirmed official in place to this day not because of Senate dawdling but because the president hasn’t gotten around to making a selection. Indeed, Trump has said that he likes having senior roles in government filled by acting officials, who may be more eager to please him. In the middle of a pandemic and with the economy in a tailspin, it is a dereliction of presidential duty to have left the government so woefully understaffed.”
Jeremy Paris, Washington Post

Moreover, “Despite Trump’s claim that he has a ‘very strong power’ to adjourn Congress, this power is actually quite limited. The Constitution provides that the president may adjourn both houses of Congress ‘to such Time as he shall think proper,’ but only ‘in Case of Disagreement between them, with Respect to the Time of Adjournment.’ Thus, the president’s power to adjourn Congress is only triggered when the two houses disagree about when to adjourn… right now the House and Senate are in agreement about when to adjourn — they plan to formally adjourn on January 3, 2021…

“All of that said, if McConnell were determined to engineer a situation where Trump could make recess appointments, he could most likely do so… Let’s suppose, for the sake of argument, that Trump succeeds in adjourning the Senate. Then what? The most likely answer is that Trump would have to keep Congress out of session for a decent amount of time… Democratic political operatives couldn’t dream of a more damaging story to tell about Trump during a presidential election year. The president is threatening to delay stimulus legislation, relief for many people who are unemployed, and potentially funding for necessary public health measures, over a petty dispute about a few political job vacancies.”
Ian Millhiser, Vox

“The Senate is holding formal sessions every few days. Those formal sessions mean that the Senate is not in recess and that President Trump cannot use the recess-appointment power to unilaterally make appointments. This, by the way, is exactly what the Senate did during President Barack Obama’s term to prevent him from making his own recess appointments. And in 2014, the Supreme Court upheld the Senate’s power to do that

“All this talk of adjournments and recesses may sound technical. But many important principles of constitutional law are embodied in constitutional fine print. Most obviously, a president cannot just make Congress disappear when he wishes—in order to end an oversight investigation, for instance, or to prevent Congress from voting against a war he would like to wage. As for the question of staffing the government, the Supreme Court explained in its 2014 decision that the primary method prescribed by the Constitution for appointing officers of the United States—including the attorney general, Supreme Court justices, and more than 1,000 other varied jobs—is presidential nomination plus Senate confirmation… The president generally can’t just cut Congress out of the picture.”
Neal K. Katyal and Thomas P. Schmidt, The Atlantic

From the Right

The right criticizes Democrats for delaying the confirmation of Trump’s nominees but is generally skeptical of his proposal to adjourn Congress.

The right criticizes Democrats for delaying the confirmation of Trump’s nominees but is generally skeptical of his proposal to adjourn Congress.

“[Democrats] have proclaimed themselves ‘The Resistance’ and made Trump’s governance as difficult as possible, exalting their political ambition to portray him as illegitimate over the country’s need for a functioning government. They have slowed appointments to a crawl by forcing the Senate to take 144 cloture votes on executive-branch nominations, with all the extended debate and chewing up of Senate session days that this entails… As the Heritage Foundation’s Hans von Spakovsky and John G. Malcolm point out, the Senate took only 30 such cloture votes during the first term of the preceding nine presidents combined

“Unfortunately, the only ways to beat back such intransigence are political: If the public is outraged enough, it must punish Democrats at the ballot box; or congressional Republicans must play the kind of hardball that makes Democrats feel there is too high a price to be paid. Neither of these is very likely — and the latter is in many ways self-defeating. Nevertheless, the president has no legal basis to adjourn Congress and make recess appointments.”
Andrew C. McCarthy, National Review

“Like ending debate, confirming a nomination can be done quickly or slowly. Unanimous consent or a voice vote do not require the presence of all senators and can take a minute or two. If the minority refuses, however, the only option is a formal recorded vote that does require the presence of all senators and takes, on average, 35 minutes or more. The Senate took 173 recorded confirmation votes on executive branch nominations during the first term of the previous five presidents, Ronald Reagan through Obama. So far, the Senate has been forced to take 179 recorded confirmation votes, and Trump’s four-year term has almost nine months to go…

“This outward example of the anti-Trump ‘resistance movement’ has had another debilitating consequence: It has resulted in scores of qualified nominees pulling out of the process because of long delays and frustration, or otherwise good people declining to be nominated because it likely would not result in a confirmation. The Democrats’ resistance tactics have hampered the work of the entire executive branch and also affected key agencies during the present coronavirus crisis.”
Hans von Spakovsky and John G. Malcolm, Daily Signal

At the same time, “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.’… 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…

“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.”
Allahpundit, Hot Air

“As it stands, the president first has to force a disagreement over the date of adjournment, use this unprecedented power to order adjournment, place the houses in recess, and then use the recess to trigger his authority to make unilateral appointments. Moreover, the Senate would not only have to cooperate in a scheme to nullify its own authority but it would likely have to torch long-standing rules governing things like cloture to end debate — rules designed to protect minority interests in what Senators like to call ‘the world’s greatest deliberative body.’ That daisy-chained strategy can break easily at various critical points… None of this needs to happen. This is a dormant provision that should be left in well-earned slumber.”
Jonathan Turley, USA Today

Some, however, argue that “We should feel no sympathy for Congress. The House pretends to be open for the sake of preventing recess appointments. Yet as things stand, because neither chamber is actually meeting in any real sense, nothing can pass. Hence the Senate is in a de facto recess. Under current rules, when legislators go home, we have a Potemkin Congress. If Senate Majority Leader Mitch McConnell wants to cooperate, the Senate should agree to adjourn for 10 days or more. If after a few days the House refused to pass an adjournment resolution, Mr. Trump could cite the disagreement and adjourn Congress and make recess appointments.”
Sai Prakash, Wall Street Journal

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