So this actually happened today during the “Daily Trump Show,” which the cable networks inexplicably continue to air live.
The Washington Post reports, Trump threatens to adjourn Congress to get his nominees but likely would be impeded by Senate rules:
President Trump threatened to shut down both chambers of Congress to allow him to fill vacancies in his administration without Senate approval.
He spent several minutes of his daily coronavirus briefing Wednesday blaming Senate Democrats for blocking his nominations, even though most of the vacancies in the federal government are because Trump has not selected anyone to fill them. Several of his nominees haven’t been given a confirmation hearing yet in Mitch McConnell’s Republican-led Senate.
In November 2013, Senate Democrats led by Majority Leader Harry Reid used the “nuclear option” to eliminate the 60-vote rule on executive branch nominations and federal judicial appointments, but not for the Supreme Court. In 2017, Senate Majority Leader Mitch McConnell extended the “nuclear option” to Supreme Court justices to get Neil Gorsuch confirmed, and in 2019 used the “nuclear option” again to reduce 30 hours of “post-cloture” debate to two hours to speed up confirmation of Donald Trump’s appointees.
With a 53-47 Republican majority in the Senate, there is literally nothing stopping Mitch McConnell’s Republican-led Senate from simply ramming through Trump’s appointments, as they have done with unqualified judges to the federal judiciary, and yet …
Trump cited a never-exercised power the Constitution grants the president to adjourn Congress if leaders of the House and Senate can’t agree on whether to adjourn.
Article II, Section 3 provides in relevant part:
“[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[.]“
There’s a reason why this power has never been exercised: Congress has always agreed on a date of adjournment. The current House and Senate have already agreed on a date: January 3, 2021. So no, Trump does not have the authority to adjourn Congress.
Trump must imagine that he is King Charles I of England who believed that by the royal prerogative he could govern without the advice and consent of Parliament. Charles I and the Petition of Right. “Charles I was furious and dissolved the Parliament that very same day [March 10, 1629]. He did not call another parliament for 11 years,” “the period of his so-called Personal Rule (1629–40), known by his enemies as the “Eleven Year Tyranny” because he had dissolved Parliament and ruled by decree.” Charles I reign led to the English Civil Wars (1642-1651).
The Senate often recesses but stays open in a “pro forma” session, which thwarts Trump’s ability to make recess appointments that bypass the regular confirmation process.
“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 is a scam. What they do, it’s a scam and everybody knows it,” Trump said.
This is a direct criticism of Mitch McConnell. Since Trump assumed office in 2017, Mitch McConnell’s Republican Senate has used “pro forma” sessions to block Trump from making recess appointments. Senate blocks Trump from making recess appointments over break: The move, which requires the agreement of every senator, means the Senate will be in session every three business days [during a recess].
Trump’s gambit assumes Senate Majority Leader Mitch McConnell (R-Ky.) would go along with adjourning and even then it would still be nearly impossible to get the votes needed to formally adjourn.
McConnell’s office declined to comment.
I’ll bet. He’s fuming. Trump is directly criticizing his chief enabler, “The Enemy of The People,” Senate Majority Leader Mitch McConnell, blaming him for his own irresponsible years-long failure to make executive department appointments.
Our would-be tyrannical Mad King Donald is now asserting powers he does not have to adjourn the Congress. On Monday, Trump claimed no fewer than three times that he had “total” or “ultimate” authority to do things such as reopen the economy. And today he again reiterated what he has said in the past, that “We have the right to do whatever we want”.
This tyrannical demagogue is completely out of control. He needs to be constrained.
UPDATE: The Post left out this part of Trump’s rant in its early report. The Huffington Post reports about his court packing scheme, Trump Threatens To Adjourn Congress For Not Confirming His Judicial Nominees (excerpt):
Trump also told reporters that “it’s never, ever happened before” that a political party has blocked numerous judicial nominees chosen by the president of the opposing party.
That claim is ridiculously false. The Republican-controlled Senate repeatedly blocked judges nominated by then-President Barack Obama ― most notably his Supreme Court pick Merrick Garland, which McConnell was mainly responsible for.
Trump and McConnell have worked together during Trump’s tenure to confirm as many judicial nominees as possible to reshape federal courts across the country. In February, the Senate Judiciary Committee voted to send 44 of Trump’s court picks to the Senate floor for a confirmation vote.
The president has also seen at least 31 circuit judges, 53 district judges and two Supreme Court justices confirmed during his time in office. One in 6 seats on the U.S. circuit courts are now filled by Trump-nominated judges ― more than any other president had confirmed by this point in their first term.
The nominees tend to be young conservatives with records of opposition to reproductive rights, LGBTQ rights, voting rights and the Affordable Care Act ― and Trump’s latest pick is no different. The president announced earlier this month, during the pandemic, that he plans to nominate 37-year-old Justin Walker to the U.S. Court of Appeals for the District of Columbia Circuit, the nation’s second-most-powerful court.
Just to be clear, Mad King Donald cannot make temporary recess appointments to the federal judiciary. In 2014, Justice Stephen Breyer writing for a unanimous court in National Labor Relations Board v. Noel Canning, held that “the pro forma sessions count as sessions, not as periods of recess.” Therefore, “We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is.” This is why the Senate uses pro forma sessions. The recess appointments clause was largely rendered a relic.
But wait … the right-wing publication Reason has an insight into Trump’s evil plan. Can Trump Order Congress Home and Unilaterally Fill Vacancies Via the Recess Appointment Power?
Breyer’s Noel Canning opinion also anticipated the Trump scenario. The Recess Appointment Clause, Breyer wrote, “gives the President (if he has enough allies in Congress) a way to force a recess.”
Here’s what that might mean in the present context: Assume that Senate Majority Leader Mitch McConnell (R–Ky.) likes the sound of Trump’s scheme to bypass the Senate in order to have a free hand to make recess appointments. So long as McConnell and his allies are willing to abdicate the Senate’s “advice and consent” role, McConnell could, theoretically, engineer an adjournment battle with the Democratic-controlled House, thus paving the way for Trump to step in. But as Rep. Justin Amash (I–Mich.) correctly pointed out on Twitter, “Without one chamber participating in this improper scheme, [Trump’s] action would be unconstitutional.”
But who would stop him? The Roberts Supreme Court? Trump likes to talk about a “coup.” This would be an actual coup by the Party of Trump.