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I get these questions a lot.
“Is Congress out this week?”
“Are they on recess?”
“Do the House and Senate meet tomorrow?”
These questions are innocent, binary. Either Congress is in or out. However, the answers to these questions are more complex if Congress is technically on “recess” — but meeting at three-day intervals, as required by the Constitution, in “pro forma” sessions.
This is part of what set off President Trump the other day. The president raged about Democrats blocking his nominees. Besides funding the government and Trump’s impeachment trial, confirming nominees is about all that Senate Majority Leader Mitch McConnell, R-Ky., has set up the body to do over the past couple of years. However, the Senate can’t confirm nominees if it’s not meeting. And, the imprimatur of Trump’s remark suggested he wanted the Senate to remain truly “on recess.” Only then could he short-circuit the confirmation process and install his nominees via a “recess appointment.”
Article II, Section 2 of the Constitution has permitted presidents to bypass the Senate and appoint officials to vacant positions if the Senate isn’t meeting.
“I will exercise my constitutional authority to adjourn both chambers of Congress,” the president thundered recently. “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’s a scam, what they do.”
If the U.S. were facing a crisis of this magnitude other than coronavirus — say, World War III — it’s a safe bet that every member of both the House and Senate would be at the U.S. Capitol around the clock. But, when the world is up against a pandemic as virulent as this one, it is simply not safe for hundreds of lawmakers to travel to Washington and toil in the Capitol all day long. That’s to say nothing of having members interact with thousands of congressional aides, U.S. Capitol Police officers, journalists, maintenance workers, custodians, groundskeepers and everyone else working on Capitol Hill.
By “adjourning” the Senate, one even could argue that the president would be appropriating the coronavirus crisis for political gain and his nominees.
But, let’s explore what President Trump was saying in the first place.
Former President Obama often moaned that Senate Republicans blocked many of his nominees. Today, the shoe is on the other foot with Trump and Senate Democrats. The “who is blocking whom” argument has been an ancient one on Capitol Hill, but delaying tactics by the opposition party in the Senate over nominees have increased over the past three decades.
Back in 2012 and 2013, the Senate was meeting every three days per the Constitution. Democrats controlled the Senate at that point. But, Republicans had the House of Representatives. Article I, Section 5 of the Constitution has barred one body from fleeing Washington for more than three days, or “adjourning” in Congressional parlance, without the blessing of the other. Therefore, the GOP-controlled House protectively blocked the Senate from going out of session. That tactic prevented the Senate from ever being in a parliamentary posture under which Obama could make a recess appointment.
Like Trump, the brief, pro forma Senate sessions which would only last 30 seconds every few days also bothered Obama. So, Obama went ahead and made recess appointments anyway. He argued that these abridged sessions really weren’t sessions at all. Thus, the Obama administration asserted the Senate was in “recess” and that qualified the president to make a recess appointment.
In 2014, the Supreme Court ruled 9-0 that Obama’s recess appointments were unconstitutional. Article I, Section 5 of the Constitution has granted both the House and Senate the right to establish their own rules. In short, the high court asserted that if the Senate said it’s “in session,” then “it’s in session.” The executive branch had no right to trample on the rights of the legislative branch.
Article II, Section 3 of the Constitution awarded the president the power to, “on extraordinary occasions, convene both Houses or either of them.”
Then-President Truman ordered Congress to meet in 1948. That’s the last time a president invoked this power. A president has directed both the House and Senate into session only 27 times in history. But, this is where things get tricky. The same portion of the Constitution stated that the president may, “in case of disagreement between them, with respect to the time of the adjournment, he may adjourn them to such time as he shall think proper.”
Let me fillet that word jumble a bit.
The Constitution appears to grant the power to adjourn Congress as well, if need be. Never before has an American president attempted to adjourn Congress. Call them into session, yes, but vacating the Capitol would be another issue altogether.
You may recall when British Prime Minister Boris Johnson controversially “prorogued parliament” last year in an effort to divert efforts to kill his Brexit plan. This hasn’t happened very often in the United Kingdom. “Prorogation” is a term for suspending parliament.
Multiple sources contacted by Fox News characterized a potential effort to “suspend Congress” as analogous to Johnson’s maneuver to prorogue parliament. The difference was that in the British system, Johnson was a member of the very body he adjourned. In the American system, as found in the Supreme Court case involving recess appointments, the executive is separate from the Congress. One source even framed such a gambit as “the end of the democracy.” The source argued that the president adjourning Congress “is not a small thing to toy with.”
That said, McConnell is an institutionalist. And, frankly, most members of Congress are institutionalists, too. Lawmakers from both bodies and both parties have been very protective of their congressional rights. So, it’s unlikely that many lawmakers would go quietly even if Trump tried to “prorogue” Congress. And, as we say, no president has ever tried to employ this practically forgotten provision of the Constitution.
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However, there is a caveat. Consider the language in Article II, Section 3 which grants the president authority to adjourn Congress “in case of disagreement.”
The “disagreement” mentioned here would be what happens, parliamentarily, when the House and Senate have approved different versions of the same bill or resolution. In other words, say the House passed a bill costing $2, and the Senate approved essentially the same bill costing $3. The sides then would need to reconcile the differences, either through a conference committee or y bouncing the legislation back and forth between the chambers until one body accepted the version from the other.
The same could happen with an “adjournment resolution.” That’s when the House or Senate would pass a measure to take off for more than three days. In order to totally adjourn, the other body also must sync up and approve the same resolution to skip town for a proscribed time period.
Consider what this would look like to have a true parliamentary “disagreement” under which Trump may have the authority to “adjourn the Congress.”
The Senate would have to adopt an adjournment resolution. Then, the House would need to OK an adjournment resolution which dictated different terms for that recess. Only then would you have an actual “disagreement” between both bodies of Congress. Conceivably, that’s when the president could get involved under the Constitution.
But, even if McConnell were to play along with Trump’s gambit, there’s no promise that the House would even get involved. To avoid a parliamentary “disagreement,” the House simply could ignore what the Senate sent over regarding an adjournment. Stuff like this has happened all the time. The House would pass a bill and the Senate would never consider it, or vice versa.
And, if for some reason even if the president were to “adjourn” the Congress, House Speaker Nancy Pelosi, D-Calif., could truncate it rather quickly by bringing the House back in right away. Like, in minutes. Then, the House and Senate truly wouldn’t be out of session. That essentially could block the president from a “recess appointment” for a vacant administration position.
Moreover, McConnell has demonstrated himself to be a dedicated foot soldier for Trump, striving to confirm many of his nominations. If Congress needed to pass additional bills to address the pandemic, “adjourning Congress” is precisely the opposite of what the president and the nation would need. It would seem that Congress would need to be nimble and in a parliamentary stature similar to the current one to pass additional coronavirus legislation. “Adjourning Congress” during a health calamity just so the administration could ram through some nominations may fly in the face of addressing the crisis at hand. Few could rationally argue that a hamstrung Congress at the hands of the president would be productive under today’s circumstances.
So, let’s go back to the original question: are the House and Senate truly “out” right now, even though both chambers are just meeting with a handful of people on board for a minute or two every few days?
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The answer is “kinda, sorta.” But, both the House and Senate are “kinda sorta” concurrently in session, too. And, unless the two bodies have a true parliamentary disagreement on a legislative measure, it’s doubtful the administration could dictate whether Congress is “in” or “out.”
As underscored by the Supreme Court’s National Labor Relations Board “recess appointment” case a few years ago, if Congress says it’s “in,” well, then it’s “in.”
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