Trump threatens to do the unthinkable, and he’s not joking

President Trump on Wednesday threatened to use a constitutional clause that’s never been invoked before in order to forcibly adjourn Congress so he can push through nominees who would otherwise need to be confirmed by the Senate.

He says there are 129 nominees for various federal agencies awaiting confirmation, and since senators are away from Washington until May 4 amid the coronavirus pandemic, he needs to do something.

“As the entire US government works to combat the global pandemic, it is absolutely essential that key positions at relevant federal agencies are fully staffed,” Trump said during Wednesday’s daily coronavirus briefing.

“We have many positions that are unstaffed because we can’t get approval.”

  • Recess appointments: As the AP, CNN, and NBC explain, the president has the power to make “recess appointments” to fill certain positions without Senate confirmation while Congress is in recess—but Congress has in recent years refused to fully adjourn in order to prevent Trump and, before him, President Obama, from making such appointments.
  • The current situation: So, while lawmakers have gone back home on a break, Congress is not technically in recess. The unstaffed positions include the director of national intelligence, two members of the Federal Reserve Board of Governors, an assistant secretary of the Treasury Department, and an undersecretary of agriculture. Trump seemed to be arguing Wednesday that he needs people filling those vacancies in order to help with the government’s coronavirus response.
  • Trump’s take on the recess appointment provision: “The Constitution provides a mechanism for the president to fill positions in such circumstances,” Trump said. “The Senate’s practice of gaveling into so-called pro-forma sessions, where no one is even there, has prevented me from using the constitutional authority we’re given. … 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.”
  • What he might do next: He called on Congress to adjourn so he can make the appointments, but said “if the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers of Congress.”
  • How that would work: The constitutional clause Trump is threatening to invoke allows the president to adjourn Congress if there is a disagreement between the House and the Senate as to whether to adjourn. While Obama did attempt to make recess appointments during a pro-forma session and was thwarted by the Supreme Court, SCOTUS has not ruled on this clause, because no prior administration has ever invoked it.
  • What would need to happen: The House is unlikely to hold a vote to adjourn, so the most likely scenario involves senators coming back to Washington and voting to adjourn, thus creating the necessary disagreement with the House.
  • Trump’s take on the never-before-invoked clause: “I have a very strong power. I’d rather not use that power but we have way over a hundred people that we very badly need in this administration that should have been approved a long time ago. … Perhaps it’s never been done before, nobody’s even sure if it has, but we’re going to do it.”

What are experts saying?

“To get away with it, he would obviously have to do this with the support of the Senate,” says a senior fellow in governance studies at the nonpartisan Brookings Institution.

“If [Senate Majority Leader Mitch] McConnell agrees to this, it would be the most extraordinary abdication of power. And somehow I can’t believe he would do it.”

Will it come to that? 

A spokesperson for McConnell later said the Senate majority leader and Trump talked about the issue, and that McConnell “pledged to find ways to confirm nominees considered mission-critical to the COVID-19 pandemic, but under Senate rules that will take consent from [Minority] Leader [Chuck] Schumer.”

NBC notes that appeared to be an attempt to “defuse” the situation by acknowledging Democrats would need to agree to adjourn.