While not technically in recess, both the House and Senate are more or less halted as lawmakers hunker down at home like the rest of the nation.
President Donald Trump is getting frustrated that appointments are being held up because of this and threatened on Wednesday to forcibly adjourn both chambers of Congress so he can push appointments through.
Pro forma sessions
Even when technically in recess, the House and/or Senate will often conduct pro forma sessions to prevent a president from making recess appointments.
This is when even one member of the chamber can come on the floor to make a speech to an otherwise empty chamber, even if for only a few minutes, to count as a formal session. It is a rather clever way to block a sitting president from pushing through appointments the legislature would otherwise object to.
President Trump seems to be getting antsy about Michael Pack, his appointment to head the Agency for Global Media, being stuck in the Senate Foreign Relations Committee.
Trump stated, “The current practice of leaving town while conducting phony pro forma sessions is a dereliction of duty the American people can’t afford during this crisis. It is a scam, what they do. It is a scam, and everybody knows it.”
Trump pushes the limits
President Trump has been rather loose with his interpretation of the Constitution as of late and this would seem to be another case of him pushing his presidential authority to the limits to get things done.
On Monday, Trump stated that he had “total” authority to dictate to states when they close or open their economies. This seemed to be based on a very liberal interpretation of the Stafford Act, which includes a stipulation enabling a government to take over a state government if that government has been decimated and is unable to function.
In regard to forcibly adjourning both chambers of Congress, Article II, Section 3 of the Constitution, reads, “[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and 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.”
Again, with a loose interpretation of that article, Trump could dismiss both chambers to an official recess, then make a recess appointment if he deemed it to be necessary.
The challenge is how well this would hold up legally and the best guess is that it would not hold up at all. In June 2014, the Supreme Court struck down recess appointments by President Obama with a 9-0 vote.
The appointments were made when Congress was still holding pro forma sessions, similar to what we are seeing right now.