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The Prospect of Presidential Adjournments Will Probably Cause the House and Senate to Agree With Each Other Which Would be Fine
Andrew Hyman

In a recent post, co-blogger Michael Ramsey argued that the President’s recess appointment power only pertains to vacancies that start to happen during the recess, rather than vacancies that continue happening during the recess.  That is an important issue about which I have no opinion right now, and instead I would like to comment about some related points.

When U.S. Senators go back to their states or go on vacation nowadays, the Senate typically has pro forma sessions that have the effect of preventing recess appointments.  But that is not the purpose of the pro forma sessions when (as now) the same party holds the White House and Senate.  According to a Senate aide, “to meet our constitutional requirement of meeting every few days, we’re doing pro formas. We didn’t do it to block Trump.”  The pertinent constitutional requirement is this: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”

So, what is happening here is kind of extraordinary: the House of Representatives is blocking the President from making recess appointments, by forcing the Senate to either stay at work in DC or instead hold pro forma sessions.  This is why the House has refused to agree with the Senate as to the timing of intra-session adjournments.

If the President were to make a credible threat of adjourning Congress, the pertinent constitutional provision would be this: “he may, 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.”  But the credible threat would probably be enough.  As Professor Steve Vladeck wrote recently in the Washington Post, “one chamber can spoil the president’s power by simply (if begrudgingly) going along with the other.”  In all likelihood, President Trump would not be crestfallen if the House and Senate resume their old practice of agreeing on intra-session adjournments, because then the GOP majority in the Senate would stop having pro forma sessions, and Trump would then be free to make recess appointments.

President Trump says there are 129 nominees "stuck in the Senate because of partisan obstruction."  In April of 2019, the Senate exercised the “nuclear option” to reduce post-cloture debate from 30 hours to two hours, but apparently there are still other ways for the Senate minority to slow down nominations, for example in committee.  

Another issue is that Trump has relied quite a bit upon acting officials pending installation of permanent officials, but it is constitutionally questionable to do so for more than six months at a time.  Recess appointments would last much longer: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Of course, if President Trump makes a credible threat of adjourning Congress, the House and Senate, instead of reaching agreement on adjournment, could reach an agreement to not adjourn and hold pro forma sessions instead.  If the Senate prefers that route, then I am sure the House would gladly agree.  So, I do not view the threat (or even the use) of the adjournment power as an "end run" around the Senate.  According to Professor Josh Blackman, both "Justices Breyer and Scalia wrote that the President could use the adjournment power to block Senate 'intransigence,'" but that seems more likely when the President's party controls the House and the opposition party controls the Senate.  Anyway, the adjournment power was likely meant for combatting intransigence in either the Senate or the House.

MICHAEL RAMSEY adds: Related, in the Wall Street Journal, Saikrishna Prakash: Yes, Trump Can Close Congress -- The Constitution gives him the power to resolve a ‘disagreement’ over the ‘time of adjournment.’ (Via How Appealing.)