Below 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