I’ve already explained that a president’s blanket recess appointments of Cabinet officials at the start of a presidential term would eviscerate the Senate’s fundamental power of advice and consent; that it’s even more outrageous to think that a president would try to adjourn the Senate in order to make recess appointments; and that any such effort could and should have the upside of enabling the Supreme Court to embrace the position taken by Justice Scalia, Chief Justice Roberts, Justice Thomas, and Justice Alito ten years ago in NLRB v. Noel Canning (2014)—namely, that the president has no power to make intrasession recess appointments. I will explain in this post why the particular scheme by which some in Team Trump would have Donald Trump try to adjourn the Senate is unconstitutional.
The scheme, which I detail more fully here, presupposes that if the House adopts a concurrent resolution that provides for the adjournment of both the House and the Senate, the Senate’s rejection of the resolution would trigger the president’s authority to adjourn both Houses under Article II, section 3 of the Constitution. (Set aside here that the Senate, instead of rejecting the resolution, could simply decline to act on it.)
Article II, section 3 gives the president authority “in Case of Disagreement between [the House and the Senate], with Respect to the Time of Adjournment.” It does not purport to confer authority on either House to take a position on whether the other adjourns. The only provision that bears on that is Article I, section 5, which provides: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”
Under Article I, section 5, the House has no say over the Senate’s decision to stay in session. Its authority kicks in only when the Senate wants to adjourn. In other words, the Senate can “adjourn for more than three days” only when the House agrees. A “Case of Disagreement” over the Senate’s request for adjournment can obviously arise.
By contrast, the Senate has complete authority to decide to stay in session. It does not need the House’s consent, and there would be no occasion to ask the House to agree. So for purposes of Article II, section 3, there can never be a “Case of Disagreement” between the House and the Senate over the Senate’s staying in session.
Thus, if Trump were to pursue this disastrous scheme, the Supreme Court would not even need to reach the question whether it should revisit the five-justice majority ruling in Noel Canning that intrasession recess appointments are sometimes permissible. The Court could instead rule that the president’s adjournment authority under Article II, section 3 was never triggered.