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“(H)e 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.”
The U.S. Senate is barreling through a number of President Trump’s nominees: Picks for the federal bench, assistant Cabinet secretaries, ambassadors.
Republicans complain that Democrats are bleeding out the summertime clock, trying to stall the Senate from confirming many of the president’s picks.
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“We’ve seen an unprecedented level of obstruction and delay in blocking from Democrats. And as a consequence of that, we’ve had to kind of grind through. And that’s what we’re going to keep doing,” said Senate Majority Leader John Thune, R-S.D.
Thune blasted Democrats for deploying clock-draining “tactics designed to block and obstruct, the president and his agenda.”
He noted that the Senate has never failed to confirm any of an executive’s nominees on a fast track. That includes “en bloc” – where the Senate quickly green-lights a swath of nominees all at once. By unanimous consent. That’s where the majority checks with all 100 senators on both sides and makes sure everyone is okay with advancing a nominee or nominees on the floor. However, one objection can tank the entire enterprise. Then there’s “voice vote.” That’s where all senators in favor holler “aye” and those opposed shout “nay.” The nominee is confirmed if the “ayes” are the loudest.
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Each of these parliamentary methods are valid ways to “vote” in the Senate. They’re a lot faster than a roll call vote – which could drag on for 30 or 40 minutes. And if everyone agrees to do things quickly, there’s no need to burn through parliamentary hurdles which sometimes consume days.
The most valuable commodity in the Senate is floor time. And the rules of the Senate often favor the minority party to chew up the minutes and hours to elongate the process and confound the majority.
Senate Republicans were determined to rifle through the core of Trump’s Cabinet and top nominees in January, February and March. In fact, the Senate confirmed the bulk of Mr. Trump’s main nominees days ahead of the mark set by former President Biden in early 2021. But Democrats have slowed down the GOP and the president on other nominees for months now. That’s why Thune says the Senate will “grind it out here and Democrats are going to be here whether they like it or not.”
The South Dakota Republican added that this was “bad practice” on behalf of the Democrats. And that “what goes around comes around” in the Senate the next time Democrats occupy the White House and the GOP sits in the Senate minority.
Senate Republicans discussed parliamentary options to make long-term changes to rules and precedents to speedily confirm nominees. GOP senators also discussed the possibility of “recess appointments” to install some of Trump’s picks – without Senate confirmation.
“He’s being sabotaged from the deep state from within,” said Sen. Ron Johnson, R-Wisc., on Fox Business. “I hate to do this to the Senate staff. But we ought to start voting overnight. Just grind the clock, try and grind them down.”
But then Johnson offered this suggestion:
“We ought to be talking about taking a full recess. Not having the pro forma session so that President Trump, if he has to, can do recess appointments,” offered Johnson.
He’s not the only one.
“No August recess until the Senate clears the confirmation backlog, with 144 nominees now pending —No more ‘pro forma’ sessions, which allow the Senate to take a ‘recess’ without triggering President Trump’s recess-appointment authority,” said Sen. Mike Lee, R-Utah.
Rep. Chip Roy, R-Texas, also joined in the chorus.
“The Senate has 3 choices. 1) fully recess & allow POTUS to recess appoint. 2) NOT recess & do its job. 3) recess & do fake sessions to prevent recess appointments. Only 1 & 2 are acceptable,” declared Roy on social media.
So what is a “recess appointment?” And what are these “pro forma” and “fake sessions” that Lee and Roy are talking about?
In the 18th Century, the Founders didn’t want to hamstring a president in case vacancies in cabinet or other administration positions became open during a Congressional “recess.” The Senate must be in session to confirm presidential nominees. And in the 18th Century, Congress was often adjourned or in recess for months at a time. The Founders viewed recess appointments as “human resources grout,” – temporarily filling a position in case the Senate was out.
Here’s how a recess appointment works: both the House and Senate must be adjourned for a period of 10 days. The Constitution requires the House and Senate to have the blessing of the other body to adjourn. And both bodies must vote to adjourn. Right now, the Republican House is scheduled to convene every three days – just gaveling in and gaveling out after a few seconds – to comply with the Constitution. So there is no way that the House could ever vote to adjourn. Moreover, the House could probably not pass an adjournment resolution anyway. The same with the Senate.
A recess appointment, which lawmakers should technically bill as an “adjournment appointment,” is only valid if both bodies have “adjourned” for more than 10 days.
Former President Obama tested whether Congress was truly in session for more than three days. He made a couple of recess appointments to the Consumer Financial Protection Bureau and National Labor Relations Board in 2012 during an abbreviated Senate recess. But the 2014 Supreme Court ruled in NLRB v. Canning that the administration couldn’t decide if the Senate was in session. Article I, Section 5 of the Constitution gives both bodies of Congress the right to “determine the Rules of its Proceedings.” In short, the High Court held that if the Senate says it’s out of session, it’s out of session. Thus, those recess appointments aren’t valid.
On Truth Social, Trump implored Senate Republicans to “cancel August recess and long weekends to confirm nominees.”
The Senate may stay in session for a while now. But there is some potential recourse for Trump.
A president has never “adjourned” the Congress on his own. However, the Constitution presents that option to the president. Article II, Section 3 of the Constitution suggests as much:
“(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.”
It’s theoretical, but there’s an argument that the president could claim there’s a “disagreement” between the House and Senate – and adjourn both bodies. He could then wait 10 days, under the NLRB case, and then install his nominees via a recess appointment.
Granted, there are measures in the Senate which could enable the majority and minority leaders to bring the body back into session and truncate the president’s unprecedented move.
So the Senate recess for August is unclear. If the Senate is going to confirm Trump’s nominees, it probably does so the old-fashioned way. As Thune said, senators will just have to “grind it out.”
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