Trump wants to do something that literally no president has done before.
At a press conference Wednesday evening, President Trump went on a long rant accusing the Senate of being too slow to confirm his nominees to executive and judicial roles, although the Senate has confirmed Trump’s judges at a much faster pace than the nominees of other recent presidents. He then threatened to use a presidential power that has never been used before in American history.
Referring to a process the Senate uses to neutralize the president’s ability to make temporary appointments while the Senate is in recess, Trump claimed that “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,” labeling this process “a scam.”
The Constitution permits the president to “fill up all Vacancies that may happen during the Recess of the Senate,” although these appointments typically expire after a little more than a year.
Pro forma sessions are extraordinarily brief sessions that the Senate holds every few days while it is not conducting business. The Supreme Court held in National Labor Relations Board v. Noel Canning (2014) that the Senate may use these brief sessions to nominally prevent itself from recessing — thus preventing the president from making recess appointments.
If the Senate does not abandon these pro forma sessions, Trump threatened to use a “very strong power” to adjourn Congress — thus forcing the Senate into recess and opening up Trump’s ability to make recess appointments.
In theory, this trick could work. In practice, however, it appears unlikely to succeed. And even if it does succeed, Trump will gain very little.
Trump’s power to adjourn Congress is weak
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.
As University of Texas law professor Steve Vladeck notes on Twitter, right now the House and Senate are in agreement about when to adjourn — they plan to formally adjourn on January 3, 2021, the day when current House terms expire. So long as the houses are in agreement, the president has no power to adjourn them.
At the moment, Congress does not plan to return to work until May 4. In theory, Senate Majority Leader Mitch McConnell could try to call the Senate back to Washington sooner — so that it could formally vote to either adjourn or to disagree with the House about the proper date of adjournment — but McConnell does not appear particularly inclined to do that.
In a statement responding to Trump’s threat to adjourn the Senate, a McConnell spokesperson said that “the leader pledged to find ways to confirm nominees considered mission-critical to the Covid-19 pandemic, but under Senate rules, that will take consent from [Democratic] Leader [Chuck] Schumer.”
All of that said, if McConnell were determined to engineer a situation where Trump could make recess appointments, he could most likely do so. As Sarah Binder, a professor of political science at George Washington University and senior fellow at the Brookings Institution, told me “motions to adjourn are not debatable” in the Senate, which means that Senate Democrats could not use the filibuster to block such a motion. If McConnell wanted to adjourn the Senate, “a simple majority vote would suffice.”
It’s not immediately clear which jobs Trump would fill by recess appointment if such an adjournment happened, although CNN suggests that the list may include “the director of national intelligence, two members of the Federal Reserve Board of Governors, an assistant secretary of the Treasury Department and an undersecretary of agriculture.”
For the most part, Trump’s nominees have received a favorable reception in the Republican-controlled Senate. Although there are some exceptions to this rule. For example, Trump’s Federal Reserve nominee Judy Shelton, a one-time advocate for fringe positions such as a return to the gold standard, has raised concerns among some Senate Republicans.
Trump would gain little from adjourning the Senate
Outlier nominees like Shelton aside, Trump would see little benefit if the Senate were formally adjourned.
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, and in the middle of a global crisis, before he could invoke his recess appointments power.
Under Noel Canning, the president’s recess appointments power is triggered during a “recess of substantial length.” Though the Court did not fully define the word “substantial,” it did strongly imply that the recess typically must be at least 10 days. “Though Congress has taken short breaks for almost 200 years, and there have been many thousands of recess appointments in that time,” Justice Stephen Breyer wrote for the Court, “we have not found a single example of a recess appointment made during an intra-session recess that was shorter than 10 days.”
In order to make recess appointments, in other words, Trump would likely need to send Congress away for at least 10 days in the middle of a pandemic. And he would need to do so at a time when the economy is hemorrhaging jobs — a total of 22 million people filed new unemployment claims since social distancing measures began in March.
In fairness, Congress already does not plan to return to Washington until early May, but that is largely so that Congress can practice the same social distancing that much of the nation is currently engaged in. Before Trump could adjourn Congress, the Senate would have to break this social distancing and pass a resolution that would enable it to be formally adjourned. It’s unlikely, especially given McConnell’s lack of enthusiasm for such an maneuver, that members of the Senate would risk their own health so that Trump could make recess appointments.
And all of this would be so that Trump could fill a few jobs with Republican appointees, most of which the Republican-controlled Senate was likely to confirm anyway, if Trump were just a bit more patient.
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.
And, while judges nominated by the president and confirmed by the Senate may serve for life, judges given a recess appointment receive a temporary appointment that expires at the end of the Senate’s next session. The current session ends in early January, and the next session will likely end in January of 2022. So a recess-appointed judge would serve less than two years.
The Senate could potentially confirm these recess appointees in the interim, giving them a lifetime appointment. But absent such a confirmation vote, any judicial vacancies Trump fills with a recess appointment could potentially be filled again very soon by a Biden appointee.
Similarly, while Trump could conceivably appoint someone like Shelton to the Federal Reserve, without Senate confirmation she would only serve a very brief term — not the 14-year term typically served by board members.
So Trump is literally threatening to do something that’s never been done — adjourn Congress by presidential decree. And he stands to gain very little from doing so.
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Author: Ian Millhiser
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