The Constitutional Defibrillator: Trump To Invoke Unprecedented Power To Adjourn Congress

800px-Capitol_Building_Full_ViewBelow is my column in USA Today on the pledge of President Donald Trump that he would adjourn Congress under a never used and rarely discussed power of Article II.  While Trump pledged to do so a week ago, there has been no mention of the invocation since that time.

In the White House press conference, President Trump stated:

“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. It’s a scam and everybody knows it, and it’s been that way for a long time, and perhaps it’s never done before. It’s never been done before. Nobody’s even sure if it has, but we’re going to do it.”

He later added:

“[Congressional leaders] know. They’ve been warned and they are being warned right now. If they don’t approve it, then we’re going to go this route, and we’ll probably be challenged in court and we’ll see who wins, but when the court hears that we aren’t getting people approved . . . for two and a half years for an important position that we need because of this crisis. We needed these people before, but now we really need these people.”

Here is the column:

President Donald Trump this week continued his curious legacy as a type of constitutional defibrillator that shocks to life long-dormant clauses related to executive authority. For decades, questions under emoluments, appointment clause and other provisions were little more than parlor games for law professors. That all changed with President Trump where flat-lined language suddenly bounced back into life with myriad of controversies.

The latest example is Article II, Section 3’s adjournment provision. Never used before, the provision allows a president “on extraordinary occasions” to formally adjourn Congress. Trump has said that he expects to be challenged in court and that is the only thing that is certain about this untested provision.

When the Framers drafted the adjournment provision, they specifically rejected the English model that allows a prime minister to dissolve Parliament to force new elections. Indeed, in Federalist 69, Alexander Hamilton assured New Yorkers that the Constitution does not allow for the power of “The British monarch [to] prorogue or even dissolve the Parliament.” Instead, “the president can only adjourn the national legislature in the single case of disagreement about the time of adjournment.” The key to the provision, and to Hamilton, is the word “disagreement.” A president can only use this power “in case of disagreement between them.”

Bal attempt to bypass Congress

The “them” refers to the House and Senate; not the president and Congress. There is no current disagreement. Both houses currently agreed on the adjournment date on Jan. 3, 2020. During the pandemic, the houses have used pro forma sessions to continue a functioning legislature while allowing members (like most Americans) to work from home. Pro forma sessions have been commonly used (to the chagrin of many presidents) to technically stay in session to block the use of “recess appointments,” where a president can temporarily fill vacant positions. Presidents will often use recesses to appoint controversial figures or to circumvent Congress during gridlock over appointments.

Trump is not the first president to long for a recess in order to unilaterally appoint officials. However, no president has ever used this nuclear option for forced adjournment. The reasons President Trump has given for such an unprecedented act are strikingly weak. He complained about his ability to secure the confirmation of an official to oversee the Voice of America because he did not like the content of the coverage. He also complained about the failure to confirm judges despite the fact that the Senate has already set a record with roughly 200 judicial confirmations, a record that will be hard for any president to beat for some time. He insists that these and other appointments are needed to deal with the pandemic, a claim that seems transparently opportunistic.

Of course, the Constitution does not make a president’s motivations a criterion for using this power. However, it does require a disagreement between the houses. This threat will test the fealty of members of both houses and both parties to their institution. They should refuse to adjourn and, absent such a disagreement, the president’s gambit will fail.

As it stands, the president first has to force a disagreement over the date of adjournment, use this unprecedented power to order adjournment, place the houses in recess, and then use the recess to trigger his authority to make unilateral appointments. Moreover, the Senate would not only have to cooperate in a scheme to nullify its own authority but it would likely have to torch long-standing rules governing things like cloture to end debate — rules designed to protect minority interests in what Senators like to call “the world’s greatest deliberative body.” That daisy-chained strategy can break easily at various critical points.

Obama lost related case

The greatest problem is that the litigation alluded to by the president would create uncertainly over the legitimacy of government decisions by these officials. I have been a long critic of recess appointments, particularly judicial recess appointments. In 2012, I testified before Congress that President Barack Obama’s use of recess appointments, including the appointment of Richard Cordray to a consumer protection board, were flagrantly unconstitutional.

While he did not use the adjournment provision, Obama adopted an abusive interpretation of both his power and what constitutes a “recess.” Like Trump, he also railed against the “pro forma” session of Congress and refused to respect the decision to stay in session. (Notably, back then, Democratic members and law professors supported Obama’s effort to circumvent Congress).

Two years later in Noel Canning v. NLRB, the Supreme Court unanimously agreed and found President Obama violated the Constitution with his appointments. In words that should resonate today, the court declared that “the Recess Appointments Clause is not designed to overcome serious institutional friction . . . Here, as in other contexts, friction between the branches is an inevitable consequence of our constitutional structure.”

However, that was not the end of it. Many then objected that any decisions made over those two years by illegitimate officials were invalid.

The unconstitutional actions of Obama were costly but would pale in comparison to President Trump’s call for a host of appointments to both the judicial and executive branches after a forced adjournment. Some would be judges who would be ruling in cases in trial and appellate courts. If they were later found to be illegitimately appointed, those cases could be challenged as illegitimate.

None of this needs to happen. This is a dormant provision that should be left in well-earned slumber. Indeed, the recess appointments that Trump seeks to use have themselves been denounced as archaic and unnecessary In the 2014 decision in Canning, the late Justice Antonin Scalia wrote a concurring opinion denounced that transformation of a narrow rule “into a weapon to be wielded by future presidents against future Senates.”

While both Justice Stephen Breyer and Scalia acknowledged this power, Scalia added that “The Recess Appointments Clause therefore is, or rather, should be, an anachronism — ‘essentially an historic relic, something whose original purpose has disappeared.’” Ironically, President Trump expressly confirmed yesterday what Scalia said next: “The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the president to circumvent the Senate’s role in the appointment process.”

Scalia was right. This is as unnecessary as it is unprecedented. During a pandemic, there has never been a more important time for “regular order” and bipartisanship in Congress. Citing the current emergency is hardly compelling when Congress is scheduled to resume full business in just two weeks on May 4 and can resume business at any time in this pro forma status. A pandemic is not an invitation for pandemonium.

Jonathan Turley is a Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors. He also served as lead counsel representing the United States House of Representatives in litigation over the health care law. Follow him on Twitter: @JonathanTurley

136 thoughts on “The Constitutional Defibrillator: Trump To Invoke Unprecedented Power To Adjourn Congress”

  1. The rightness or wrongness of Trump’s interest in invoking this miss the (in my mind) larger point. As Mr. Turley aptly states, “During the pandemic, the houses have used pro forma sessions to continue a functioning legislature while allowing members (like most Americans) to work from home.”

    In point of fact, the “work” of a “functioning legislature” is to pass legislation and confirm Executive appointments, among other duties (oversight, etc.). Without having provisions for members to vote remotely (i.e.: “while…work[ing] from home” how can they possibly fulfill their duties and obligations to vote on legislation and other matters requiring votes–like, for instance, confirmations? The answer is: They can’t “work from home” without the ability to perform the actual actions involved in their work.

    Put another way: My employer has graciously allowed its workforce to work from home. Indeed, there are extremely few employees even *allowed* to be physically present on company property. Suppose I did not have the means to work remotely: an Internet connection, a computer, and access to the company’s VPN. Would I still be able to perform the sweeping majority of my usual, daily work tasks? Of course not. Would the company rightly be able to assert that I was not actually “working?” Yes, absolutely.

    Congress is no different, in this example. Because they *can not* vote, they cannot perform the chief duty of their position. Because of this, they are the epitome of non-functioning. Because they cannot function, and are in fact non-functioning, the pro forma sessions do not serve any sensible purpose, relative to their duties and obligations. “Unanimous consent” and “voice votes” are by no means, adequate methods of conducting “the People’s business.”

    To follow the illustration: Congress does not have an Internet-connected Voting VPN, and members do not have a computer. How can anyone say they even have the slightest ability to work from home? Because they can’t work, they should rightly either: adjourn in person, or adjourn sine die. Those are the only legitimate resolutions. This pro forma nonsense is patently ridiculous.

    Besides, why do they care if the meet or not: they get paid just the same?

    1. Going forward, we might do something sensible like radically reduce the number of executive appointments which require confirmation votes.

    2. “Because they can’t work, they should rightly either: adjourn in person, or adjourn sine die.” should read: “either: convene in person, or adjourn sine die.”

      Apologies for the oversight.

  2. King Donald the Mad advocated breaking the law.

    Unfortunately we won’t have a Glorious Revolution to be rid of him.

  3. Governor Murphy (New Jersey) is quit a guy, another fine democrat. His latest statement, the bill of rights is above my pay grade. And he’s a governor.

  4. oil price crashed today again….. zero? what does that mean?
    this is very dangerous

    financial markets are broken

    war looms on horizon closer and darker than it did just last week

    dont let the cure kill the patient guys, this is some major spooky stuff now

    1. What does it mean too happy campers, crime is rapidly increasing, protest have already started, Riots are likely to start within days or weeks regardless of the US Tyrants 2 places like goog/satian’s apple/msft/JPMorgan/Wells Fargo/Goldman Sachs/ NIH/CDC/HHS/FDA/chicom’s Wuhan Bio Weapon.

      Anyway, the fan is being rapidly turned around 180 at them so when the SHTF it’s aimed at them that are responsible for this disaster.

      https://banned.video/watch?id=5e9e240ed0f1f400b1231769

    2. There’s nothing spooky about flux in commodity prices. It happens at some point every business cycle. No clue what you mean by ‘financial markets are broken’.

  5. WHY DO THE BILLION DOLLAR ENDOWED IVY LEAGUE UNIVERSITIES GET A SINGLE PENNY?

    and the small business program is underfunded

    despicable pigs in the ivory towers socalled “nonprofits”

    https://www.campusreform.org/?ID=14742

    incompetent administrators and mis-educators should be arrested instead of rewarded

    1. For once, we agree. Harvard has multiple billions in its endowment at their disposal, but my favorite little neighborhood restaurant isn’t even doing carryout any more. It will likely go under.

      1. Did you and your friends continue to order out good amounts of food from what you say was your favorite restaurant? Obviously not enough or your favorite restaurant would still be doing takeout.

    1. Estovir / Young is upset because his sock puppets have been exposed as the empty shells they are. He’s just finding out the puppets have been tagged for many days.

  6. Shortage Of Rural Hospitals Due To Mergers.  

    Loss Of Rural Hospitals Greater In States That ‘Rejected’ Obamacare

    America’s now-disastrous lack of hospital capacity is no accident. It is, in part, a result of consolidation over the past 30 years that concentrated our health-care system in wealthy cities and suburbs, where the prevalence of expensive insurance plans allowed big health systems to rake in profits. There have been more than 680 hospital mergers over the past decade, a trend that is likely to accelerate in the coming years. It involves mergers between hospital systems, as well as large hospital conglomerates’ takeovers of rural hospitals, physician offices, ambulatory surgical centers and other outpatient clinics.

    The wave of takeovers the FTC oversaw has contributed to the loss of rural hospitals and a decline in the number of beds across the country. Today, there are about 15 percent fewer community hospitals in the United States than in the mid-1970s; since 2010, about a dozen merged rural hospitals have shuttered. The impact of hospital consolidation is particularly painful in the context of the pandemic: Mergers and closures have contributed to the reduction in hospital beds in the United States, from around 1.5 million in 1975 to just more than 900,000 in 2017.

    Further exacerbating the effects of these mergers, at least 120 rural hospitals have shuttered over the past decade. The loss of providers is a result of a number of factors, including shrinking populations in rural areas. But consolidation has played a part. The Affordable Care Act increased the pace of consolidation, and the hospital industry is now highly concentrated in 90 percent of all U.S. cities, according to a Commonwealth Fund study. These mergers and rural closures have moved decision-making further and further away from the communities most affected.

    Rural hospitals in particular have struggled for myriad reasons, including the decision of many Southern and Midwestern states to not expand Medicaid under the Affordable Care Act. In fact, none of the six states with the greatest number of hospital closures since 2010 (Texas, Tennessee, Georgia, Alabama, Mississippi and North Carolina) expanded Medicaid, resulting in a health landscape where patients are in worse health and have fewer providers to treat them.

    Recent studies have shown that even before covid-19 began to strain rural health systems, 1 out of every 5 rural hospitals was at risk of closing because of financial pressure. Part of this pressure comes from sicker patient populations that are more likely to rely on Medicare or Medicaid, which have lower reimbursement rates than private insurance does. That has made for an underlying health crisis upon which the covid-19 pandemic is now layered. If hospitals had not undergone such sweeping consolidation over the past decades, our health-care system probably would be better equipped for the outbreak now. “It is definitely a piece of the overall puzzle,” says Dunc Williams, who researched rural hospital mergers and closures at the University of North Carolina at Chapel Hill.

    This trend is just one example of the increase in corporate power that has characterized the economy over the past few decades. It has also hurt patient care and driven up patient and insurer costs — which means more cash for already-wealthy hospital conglomerates and the executives who run them.

    Edited From: “We’re Short On Hospital Beds Because Washington Let Too Many Hospitals Merge”

    The Washington Post, 4/8/20

    1. We don’t have a ‘dsastrous’ lack of hospital capacity, nor do we need castles in the desert.

    2. It’s also what happens when health care becomes a business, instead of a service, or, going back to its historical roots in this country, part of the service mission of various religious groups, like Catholic nuns, Protestant Deaconesses, and Jewish women. So, they aim to avoid empty beds, they stock as few supplies as possible, and have minimum regular staffing (most of whom work as “contractors”), supplementing with traveling nurses. All to maximize profits. This was a foreseeable disaster.

    3. You left out the part where many hospitals closed due financial problems stemming from being forced to provide free medical care to illegal immigrants.

  7. As legal, as constitutional as Abraham Lincoln:

    America is in a condition of hysteria, incoherence, chaos, anarchy and rebellion.

    President Abraham Lincoln seized power, neutralized the legislative and judicial branches and ruled by executive order and proclamation to “Save the Union.”

    President Donald Trump must now seize power, neutralize the legislative and judicial branches and rule by executive order and proclamation to “Save the Republic.”

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