WASHINGTON (CN) — Airing his frustrations that the Senate has not confirmed a number of judicial and administrative vacancies, President Donald Trump on Wednesday night threatened to use his executive power to adjourn both bodies of Congress.
The threat came during the now regular White House coronavirus task force briefing and as the death toll in the United States from the novel coronavirus creeps toward 30,000.
From the Rose Garden, the president spent a considerable portion of the briefing railing against Democrats who he says have obstructed his administration from fulfilling several critical vacancies.
“The Senate should either fulfill its duty and vote on my nominees or it should formally adjourn so I can make recess appointments. We have a tremendous number of people that have to come into government,” Trump said, adding that the urgency to confirm nominees is even greater in light of the virus.
Aided by a Republican majority in the Senate that has made confirming judges a top priority, Trump has appointed 193 federal judges, including 51 to federal appeals courts and two to the Supreme Court.
There are currently 38 federal judicial nominees pending at some stage in the confirmation process in the Senate and 76 total vacancies on federal courts across the country, according to a tracker compiled by the Article III Project, a conservative group that supports Trump’s judicial nominees.
Senate Democrats have somewhat slowed the pace of confirmations by demanding procedural and formal votes more often than for past presidents, but Senate Republicans have also changed the rules to keep Trump ahead of his predecessors in the pace of his appointments.
One of those changes cut from 30 hours to two hours the amount of time between a procedural vote and a final confirmation vote for district court nominees and some executive branch appointees.
The Republican-controlled Senate also eliminated the filibuster for Supreme Court nominees to confirm Justice Neil Gorsuch. That move came after Democrats eliminated the filibuster for lower court nominees in 2013.
Senate Majority Leader Mitch McConnell spoke with Trump on Wednesday about the pace of confirmations and “shared his continued frustration with the process,” according to the Kentucky Republican’s office.
“The leader pledged to find ways to confirm nominees considered mission-critical to the Covid-19 pandemic, but under Senate rules will take consent from Leader Schumer,” a McConnell spokesman said in a statement.
Senate Minority Leader Chuck Schumer did not immediately respond to a request for comment on Trump’s statement.
Under Article II, Section 3 of the Constitution, the president “may on extraordinary occasions convene both houses or either of them and in case of disagreement, with respect to the time of adjournment, he may adjourn them to such time he shall think as proper.”
The catch for Trump, however, is that at present — even with the pandemic upending most activities on Capitol Hill and forcing lawmakers to work remotely — both bodies of Congress are not technically in recess. They are operating in what is known as a “pro forma” session.
So while the Senate is technically in session now, Trump is barred, by pro forma rules, from making recess appointments, thereby thwarting the regular confirmation process. Trump referred to pro forma sessions as “phony” and a “dereliction of duty” by Democrats during Wednesday’s briefing.
For Trump to intervene and adjourn both bodies, he would need the Republican-controlled Senate to agree to adjourn from business. Under the rules, it would also require the Democrat-controlled House to object.
Leslie Jacobs, director of the Capital Center for Law and Policy at the University of the Pacific McGeorge School of Law, told Courthouse News on Wednesday night that since the bodies are controlled by different parties, it’s possible they could decide to disagree on how to proceed.
“The House and Senate have their own rules and they control when they’re meeting and not meeting,” Jacobs said.
Jacobs noted Under Article II, Section 3 mentions extraordinary circumstances, meaning something is stopping Congress from doing things for itself.
“His claim is that the Senate is not confirming his nominees. But that’s not news. That’s been happening and it’s been happening through both administrations,” Jacobs said. “Republicans, Democrats, that’s the nature of the Senate. And you need extra votes to do things, often. It’s not extraordinary, it’s just the circumstances.”
Trump can “say whatever he wants,” Jacobs added, but the Constitution is clear.
“The two houses have to disagree about adjourning. The question is a political one on whether the two houses are going to somehow want him to be able to exercise this authority,” she said. “So long as Congress stays united in wanting to control its own agenda in the time it needs or doesn’t need.”
Professor Johnathan Turley, a George Washington University law professor who during Trump’s impeachment argued that the proceedings against Trump were flawed, told Courthouse News on Wednesday that he found Trump’s proposal “curious.”
Like Jacobs, Turley noted the Senate has not technically moved into recess. Clearing the hurdle of triggering a disagreement to cue his own executive authority would be difficult.
Turley also called Trump’s threat an “ultimate example of an untested power.”
“It is baffling that the president would take such an unprecedented action for such stated reasons as filling a slot on the Voice of America,” Turley said, referencing Trump’s mention of Michael Pack, the president’s nominee for head of the U.S. Agency for Global Media. The agency formerly known as the Broadcasting Board of Governors runs the widely esteemed Voice of America news service.
Pack, a documentarian, has received support from conservatives like former U.S Attorney General Ed Meese and the former president of the conservative-leaning Heritage Foundation but criticism from Democrats who say he is too partisan for the role and wouldn’t be a good fit to oversee the taxpayer-funded Voice of America.
“Even if successful, these appointees would serve under a considerable amount of controversy,” Turley said.
Former Republican turned independent Justin Amash slammed Trump’s call for adjournment Wednesday night, dubbing it an “improper scheme.”
“This action would be unconstitutional. The president has no general, unilateral power to adjourn Congress. He may do so only in the limited “Case of Disagreement between them, with Respect to the Time of Adjournment,” Amash tweeted.