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President Donald Trump suggested on Wednesday that he has the constitutional authority to adjourn Congress. The suggestion has been, unsurprisingly, panned by the media and legal scholars. The Constitution does actually provide some authority here, but the authority has never been used, leaving more questions than answers.
At issue is the lack of confirmation of nominees, especially during the COVID-19 crisis while Congress remains out of session. President Trump wants more of his nominees confirmed. Through March 5, 75 percent of his nominees have been confirmed, compared to 79 percent of President Barack Obama nominees at the same point in his presidency. For President George W. Bush, that number was 81 percent. The pace of confirmations has been slow already to this point because Senate Democrats have forced 296 cloture votes on nominees and 356 roll call votes. The Senate forced only 15 roll call votes on President Obama’s nominees by this point in his presidency.
The confirmation process came under a microscope during Barack Obama’s presidency. At the time, a 60-vote majority was required to limit debate on nominees and Republicans were able to block nominees. The lack of agreement between the two chambers for a recess meant that the Senate had to continue employing pro forma sessions. President Obama made appointments, with no regard for constitutional order, while the Senate was technically in session.
Pro forma sessions have become weaponized over the past several years. In 2007, then-Senate Majority Leader Harry Reid (D-Nevada) used pro forma sessions to prevent President George W. Bush from making recess appointments, a power provided to the president under Article II, Section 2.
Article I, Section 5 of the Constitution prohibits either chamber for adjourning for three days without the consent of the other chamber. With a Senate controlled by Republicans and a House controlled by Democrats, the likely disagreement creates a situation where each chamber has to conduct a pro forma session. Admittedly, during the two recent years in which Republicans had control of both chambers, pro forma sessions were used regularly. Usually, nothing happens during these sessions. Few members are present. They’ll gavel in and gavel out within minutes.
It’s worth noting that during the COVID-19 crisis, Senate Majority Leader Mitch McConnell (R-Ky.) has tried to conduct some legislative business. Last week, for example, Leader McConnell tried to get unanimous consent (UC) to pass legislation to increase the funding for the Paycheck Protection Program by $250 billion, bringing the total authorized spending to $600 billion. By the time McConnell sought the increased authorization, the program, which was passed as part of the CARES Act, had exhausted 30 percent of its funding. As of today, the funding for the program has been exhausted. Sen. Ben Cardin (D-Md.) objected to UC for the increased funding for the Paycheck Protection Program.
In 2014, the Supreme Court unanimously ruled against President Obama in National Labor Relations Board v. Noel Canning. The National Labor Relations Board (NLRB) had, in 2012, voted against Noel Canning, a beverage distributor, after Canning didn’t execute a collective bargaining agreement. Three members of the five-member panel who voted against Noel Canning were recess appointments made during an intra-session recess, during which there were pro forma sessions. The three illegal recess appointments were nullified, as was the ruling against Noel Canning. There’s a little more to the decision, but we’re summarizing the gist of it.
Article II, Section 3 of the Constitution comes into play because it does give the President power to call Congress into session, as well as to adjourn it. The clause states: “[H]e 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.”
Presidents have used the power to call Congress into session. The most recent time this power was used was July 1948 when President Harry Truman called a Republican-controlled Congress back to Washington, DC to work on domestic legislation. The power hasn’t been used in more than 70 years because Congress is in session so frequently. The power to adjourn Congress when there is disagreement between the House and the Senate hasn’t been tested because it hasn’t been used.
The Senate could try to pass a concurrent resolution to adjourn by UC and send it to the House for passage. That said, a roll call vote will, more likely than not, be required because any senator may block a UC request. Given that the United States is in the midst of the COVID-19 pandemic, a roll call vote may not even be ordered considering the number of elderly senators.
Some have compared the use of this unique power to a dissolution of Congress, similar to that of a parliamentary system like the United Kingdom. That’s hyperbolic considering the almost certain backlash from members of Congress and the separation of powers in the constitutional system that we have. One could reasonably argue that the power to adjourn Congress when there is disagreement was meant to limit executive power.
President Trump could try to invoke this power and test the courts. Whether he will have luck there is an open question. Granted, the courts may approach this with a hefty dose of skepticism. As Judge Stephen Breyer wrote in his opinion in National Labor Relations Board v. Noel Canning, “[T]he Recess Appointments Clause is not designed to overcome serious institutional friction. It simply provides a subsidiary method for appointing officials when the Senate is away during a recess. Here, as in other contexts, friction between the branches is an inevitable consequence of our constitutional structure. That structure foresees resolution not only through judicial interpretation and compromise among the branches but also by the ballot box.”