Even those who are not Trump devotees but would like to see the government function properly should sympathize with the president’s frustration over the way Senate Democrats have slow-walked his appointments.
To be sure, this is not the exclusive reason why there are vacancies in key executive-branch slots, including in posts relevant to the government’s COVID-19 response. The administration has been slow in making nominations to some positions (when asked about this, the president says it is an intentional strategy to shrink bloated government). Trump can be very difficult to work for. And the baseless investigations of the administration have made it challenging to recruit high-caliber people — such people always have other options, and even the most public-spirited people would rather avoid situations where the need to retain counsel comes with the territory.
Hopefully, though, the president was just blowing off steam earlier this week when he threatened to force an adjournment of Congress in order to enable recess appointments, by which he might temporarily install executive officers and federal judges. Realistically, the president has no power to force Congress to adjourn — it is up to the Senate to decide whether it is in session. The Constitution’s recess-appointment provision, moreover, is an anachronism that should be treated as a nullity.
To take the latter first, it is not 1787 anymore. Modern transportation technology makes it easy to convene Congress if there is some emergency reason to do so. Modern communications technology may soon usher in remote congressional sessions, in which senators and House members debate and vote from wherever they are situated outside of Washington — something that was seriously proposed when the coronavirus hit Capitol Hill a few weeks back. In short, we are no longer in an era when (a) Congress is not in session for months on end, (b) it is challenging to assemble lawmakers in Washington to conduct emergency business, and (c) the president has to have some way to fill key posts during a sudden crisis.
The Framers sagely intended the Senate’s advice-and-consent power to be a check on the president’s power to appoint federal officers and appoint judges to life-tenured seats on the bench. It is a terrible development that appointments have become so politicized, but the check is still necessary to assure that important jobs are filled by competent, scrupulous nominees. The Constitution’s recess-appointment clause (Article II, Section 2) was not meant to be the exception that swallows the rule. In an era when convening Congress quickly was impractical, it was meant to give the president authority to fill slots temporarily between congressional sessions. That is why recess appointments last only through the end of the congressional session that follows the appointment.
As for recesses, Congress is not in recess unless it says it is in recess. The Constitution gives both houses of Congress broad authority to make their own rules.
One of the few requirements the Constitution imposes on congressional procedure is that neither chamber may adjourn for more than three consecutive calendar days without the other’s consent. To avoid this, they conduct “pro forma” proceedings — the proceedings that the president railed against as a “sham” during a coronavirus press conference earlier this week.
The pro forma procedure is usually used by the Senate. When the Senate takes a break in the middle of a session, as it is doing right now, one senator (often from a state close to Washington, but it can be any senator — all of them live in Washington much of the time) gavels the chamber into session and then promptly gavels out. It takes just a few minutes and no real business is conducted, though the Senate retains the power to conduct business (and has in fact occasionally used the procedure to conduct routine “unanimous consent” business).
The pro forma proceedings mean there can be no claim that a true recess in the session has occurred. They further deprive the president of power to make recess appointments. Recall that President Obama, in his characteristic intolerance of constitutional restraints on executive authority, attempted to make some recess appointments when the Senate was not in recess. At the time, the Senate was conducting pro forma sessions because Republicans then, like Democrats now, were determined to prevent recess appointments. The Supreme Court, in NLRB v. Noel Canning, invalidated Obama’s lawless gambit. The Court concluded that the pro forma proceedings count, and thus the Senate is in session if it says it is in session. Case closed.
In his mini-tirade, President Trump said that if the House did not allow the Senate to adjourn so that he could make recess appointments, he would “exercise my constitutional authority to adjourn both chambers of Congress.” He was apparently referring to another vestige of the Founding era, Article II, Section 3 of the Constitution. It provides that if both houses of Congress disagree about whether there has been an adjournment of the session, the president “may adjourn them to such Time as he shall think proper.”
The problems with the president’s suggestion are obvious. First, there is no disagreement between the two chambers. Unless there were a change by law, the current 116th Congress’s session will end on January 3, 2021. (Under the 20th Amendment, the terms of outgoing Senators and House members end on January 3 of the odd years in which their successors take those seats.) Clearly, there is not going to be any change in the law.
In addition, while the Framers anticipated that there could be extraordinary circumstances when the president would need to referee an intramural congressional dispute about whether an adjournment has occurred, this power has never been exercised in American history. It is hard to imagine this kind of controversy ever arising; but one thing is certain: The Framers did not put this obscure adjournment provision in the Constitution to facilitate recess appointments. Again, such appointments are irregular — stopgap measures to address a contingency that no longer exists.
The president is right that the Democrats’ obstruction has been reprehensible and of historic dimension. From the first, they 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. By doing so, Democrats have smashed the traditional bipartisan consensus that the president is entitled to have qualified nominees of his choosing exercising executive power. 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.