President Trump raised the possibility that he could invoke Article 2, Section 3 of the Constitution to adjourn Congress in order to make recess federal appointments, a never-before-used presidential power that Senator Majority Leader Mitch McConnell (R., Ky.) suggested he would not support.
Trump proposed during the White House coronavirus press briefing on Wednesday that we would use his “very strong power” to “exercise my Constitutional authority to adjourn both chambers of Congress.”
“As the entire US government works to combat the global pandemic, it is absolutely essential that key positions at relevant federal agencies are fully staffed, and we’re not allowing that to take place through our Congress,” Trump explained, saying he had 129 nominees “stuck in the Senate because of partisan obstruction.”
Congress, currently in recess until May 4, is still having pro-forma sessions in which any lawmaker can object to a motion — preventing the president from pushing through vacancy appointments.
“The current practice of leaving town while conducting phony pro forma sessions is a dereliction of duty the American people can’t afford during this crisis,” Trump said. “They have been warned.”
In a statement Wednesday night, McConnell said he shared the president’s “frustration with the process,” but admitted that “under Senate rules,” confirmation processes “will take consent from Leader Schumer,” suggesting he did not agree with the means proposed by the White House.
While the Constitution says that the president “may, on extraordinary Occasions . . . in Case of Disagreement between them” adjourn Congress, it has never been invoked by a president before, and its scope is unknown relative to federal appointments during pro-forma sessions. Later in the briefing, Trump admitted that if he attempted to move forward with the plan, it would “probably be challenged in court.”
In addition to the courts, Trump would also have to secure McConnell’s cooperation, since the Senate would have to be reconvened to vote on the adjournment.
In 2014, the Supreme Court ruled in a separate case against a 2012 attempt by then-President Barack Obama to make three recess appointments during pro-forma sessions, saying “that the Recess Appointment Clause does not give the President the constitutional authority to make the appointments here at issue.”