Donald Trump used the coronavirus briefing yesterday to threaten Congress with adjournment unless the dozens of nominees for vacancies in the executive department are confirmed.
“The Senate should either fulfill its duty and vote on my nominees or it should formally adjourn so I can make recess appointments,” Trump said in a Rose Garden press conference. Many Trump nominees have been languishing in a no-man’s land between having been successfully vetted and Senate action. Trump wants the Senate to get off its duff and either hold hearings to approve nominees or schedule an up-or-down vote on them.
Lawmakers in both chambers are not expected to return to the Capitol until May 4 but both the House and Senate have been conducting pro forma sessions in the meantime. Those sessions prevent Trump from making recess appointments.
“The current practice of leaving town while conducting phony pro forma sessions is a dereliction of duty that the American people can not afford during this crisis,” he said. “It is a scam, what they do. It’s a scam. And everybody knows it and it’s been that way for a long time.”
Republicans should be familiar with the “scam.” They pulled it numerous times during the Obama years to keep the president from confirming nominees.
But this is different, considering that Congress can’t meet in person because of virus restrictions. And within the next few days, the Senate is likely to vote on some kind of small business loan package that would include $250 billion for the loan program included in the $2 trillion bailout bill. That program is running out of money and needs an immediate infusion of cash.
But are Trump’s threats to force adjournment credible? Yes and no.
Article II, Section 3 of the Constitution 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.”
That means that in order for the president to step in and dismiss both, the GOP-controlled Senate would have to adjourn while the Democrat-held House objected. Senate Democrats also have procedural tools to prevent the Senate from adjourning.
The National Constitution Center noted that “no President has ever exercised” the authority.
So, technically, he has the power but realistically, he won’t be able to exercise it.
Constitutional law professor Jonathan Turley warned the president against using the tactic.
The President just said that he may unilaterally adjourn Congress. This seems to be a reference to Article II, Section 3, which gives a president in “extraordinary occasions” to convene or adjourn the Houses. This power has never been used and should not be used now . . .
— Jonathan Turley (@JonathanTurley) April 15, 2020
Nevertheless, Trump’s threat may be what’s needed to get the ball rolling on confirming critical nominees.
“The Leader pledged to find ways to confirm nominees considered mission-critical to the COVID-19 pandemic, but under Senate rules that will take consent from Leader Schumer,” the spokesman added.
Part of the problem with vacancies is Trump’s own doing.
The Trump administration has long been plagued by vacancies across the government. Trump has declined to nominate full-time appointees to key positions, instead relying on officials in acting capacities.
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.
The bureaucracy grinds on regardless of whether the boss is a confirmed nominee or acting in that capacity. But there’s something to be said for stability, and many departments lack the kind of continuity that contributes to good management.
Democrats will continue to play their obstruction games, hoping for a change of management in 2020. It worked for Republicans in 2016, as they stalled Obama’s dozens of judicial nominations, allowing Trump to name more acceptable judges.
Congress has recently shown it can work together to get things done. Unfortunately, that cooperation appears only to extend to acting on the current crisis and not to confirming worthy nominees.