Trump faces roadblocks with threat to adjourn Congress

President Trump’s threat to adjourn Congress so he could force through dozens of nominations is quickly hitting steep roadblocks that make the plan all but guaranteed not to happen. 

The idea, floated by Trump during a White House press conference, threatened to pour new fuel into the long-simmering fight over nominations, which have emerged as a lightning rod within the Senate in recent years. 

The president’s power to adjourn Congress, enshrined in Article II of the Constitution, has never been used before by a president, setting an all-but-guaranteed court fight if Trump moved forward.

But legal experts say Trump doesn’t have the authority to adjourn Congress without cooperation from at least one chamber, and Senate Republicans poured cold water on the idea. 

Steve Sanders, a professor at Indiana University’s Maurer School of Law, told The Hill that Trump was making “off the cuff, unsupported assertions about his power.” 

“The president is not in charge of Congress, I think that’s the main point. Congress is a co-equal, independent branch of government,” he said. 

Steve Vladeck, a professor at the University of Texas School of Law, said that Trump’s threat to adjourn Congress is “hollow” and that the president was “misreading” the Constitution. 

“Trump’s argument is legally impulsive, practically moot and another example of his attempts, guilefully or not, to move the Overton window on constitutional debate,” Vladeck wrote in a Washington Post op-ed, referring to a phrase for the range of ideas viewed as politically acceptable.

Trump surprised Washington on Wednesday when he used his daily coronavirus task force briefing to make a segue into railing against the Senate for holding pro forma sessions. The brief meetings are required to take place every three days under the Constitution unless both chambers pass an adjournment resolution. 

“If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers of Congress. 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. It is a scam, what they do,” he said. 

He appeared to be referring to Article II, Section 3 of the Constitution, which grants Trump the power to “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.”

The pro forma sessions are largely a holdover from the Obama era, when Republicans used them to prevent then-President Obama from making recess appointments. 

For Trump to actually use the power to adjourn Congress, there would have to be a “disagreement” between the House and Senate on when to adjourn, creating an opening for Trump to try to act, according to constitutional experts. 

“He can do it only if the Senate agrees to [adjourn],” said Thomas Mann, a senior fellow in governance studies at The Brookings Institution. 

But neither chamber has signaled they will try to adjourn. Trying to do so, absent a unanimous consent agreement, would require lawmakers to come back to Washington and formally vote to adjourn even as they are staying in their home states because of safety concerns due to the coronavirus. 

Senate Majority Leader Mitch McConnell (R-Ky.) signaled on Wednesday that while he was frustrated about the pace of nominations, any quick action would require the cooperation of Senate Minority Leader Charles Schumer (D-N.Y.). 

“The Leader pledged to find ways to confirm nominees considered mission-critical to the COVID-19 pandemic, but under Senate rules will take consent from Leader Schumer,” a spokesman said. 

McConnell then set up additional pro forma sessions on Thursday, which will keep the Senate technically in session until the chamber returns on May 4. A spokesman for Speaker Nancy Pelosi (D-Calif.) confirmed that the Democratic-controlled chamber will also continue to hold pro forma sessions. The actions prevent Trump from making recess appointments. 

Sen. Roy Blunt (Mo.), a member of Republican leadership and chairman of the Rules Committee, said Trump had “every reason in the world” to be frustrated but “I don’t think the president has the authority to do what he suggested he … might do.” 

Trump hinted that the fight over adjournment could be played out in court, but both Mann and Sanders appeared skeptical that the courts would be willing to get in the middle of a political fight between the two branches. 

“The courts are very reluctant to enter into a dispute between the president and the Congress. They stay out of that as best as they can,” Mann said. 

The Supreme Court has previously upheld the validity of pro forma sessions when they sided with Senate Republicans over then-President Obama. 

“For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business,” the Court held in NLRB v. Noel Canning, which contested Obama naming members to the National Labor Relations Board by a recess appointment. 

Trump railed against Democrats who he accused of slow-walking executive nominees, saying they are “holding us up. We cannot get approval.” 

Republicans have also accused Democrats of a historic level of obstruction on lower-level executive branch nominations, which can be confirmed by a simple majority after Democrats nixed the 60-vote filibuster for most nominations. Republicans, in 2019, also went “nuclear” to cut down on the amount of debate time required for most executive nominees and district judges. 

“He has every reason in the world to be aggrieved by this, you know the Democrats were terrible,” Blunt added. 

The Senate has taken 172 cloture votes on executive and judicial nominees during the 116th Congress, and an additional 128 cloture votes during the 115th Congress, according to data obtained by The Hill. Filing cloture forces the Senate to eat up days of floor time on a nomination.

The 128 cloture votes during Trump’s first two years compare to 12 during the same time for then-President Obama and four during the same time period for then-President George W. Bush, according to the Senate data. That includes 84 executive branch nominations that had not previously required cloture. 

But two of the positions specifically mentioned by Trump — the director of national intelligence and a Federal Reserve pick — are facing delays because of Republicans. 

McConnell as majority leader also has the ability to determine what nominations to file cloture on and force floor action. And the GOP leader has been frank about the fact that judicial nominations, particularly circuit court picks, are his top priority when scheduling Senate floor time. 

The administration has also been slow to nominate individuals.

One hundred and fifty of 749 “key positions” tracked by The Washington Post and Partnership for Public Service do not have nominees, while another 15 are awaiting nomination. Trump’s “A Team”— influential positions within the executive office of the president — have also seen an 85 percent turnover, according to tracking by Brookings Institution. 

“The staffing problems are the president’s,” Mann added. “The Republicans have been in charge of the process from the beginning of his administration.”