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A clash over appointments to executive agencies is brewing after President Trump threatened to invoke an obscure constitutional power to adjourn both chambers of Congress under certain circumstances as a way to allow himself to make recess appointments — filling vacancies in jobs he says are needed to help fight the coronavirus without the advice and consent of the Senate.
Presidents have the power under the U.S. Constitution to temporarily fill vacancies while the Senate is out of session, but the body holds what are called “pro forma” sessions – very brief meetings with a skeleton crew that happen when the body is not taking care of legislative business – in order to remain in session, thus blocking recess appointments. Trump wants to use that power to fill vacancies in executive agencies that have been largely neglected by a Senate focused mainly on lifetime judicial appointments.
“We have a tremendous number of people that have to come into government and now more so than ever before because of the virus and the problem,” Trump said in remarks at the White House Wednesday.
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TRUMP SAYS HE MAY FORCEFULLY ADJOURN CONGRESS, USE RECESS TO APPOINT NOMINEES
Former President Obama received a Supreme Court rebuke when he tried to test the constitutionality of conducting recess appointments when the Senate is running pro forma sessions, with the Supreme Court declaring that only the Senate can decide when it is in session and when it is not.
But Article II, Section 3 of the Constitution gives the president the power to “adjourn [Congress] to such Time as he shall think proper,” when the House and Senate cannot agree on when to adjourn. Trump said the Senate should stop conducting its pro forma sessions and formally adjourn to allow him to make recess appointments.
“If the House will not agree to that adjournment I will exercise my constitutional authority to adjourn both chambers of Congress,” Trump said. “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.”
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But that would require the Senate to adjourn in the first place — a move Senate Majority Leader Mitch McConnell seemed reluctant to make in a statement Wednesday.
“Leader McConnell had a conversation today with the president to discuss Senate Democrats’ unprecedented obstruction of the president’s well-qualified nominees and shared his continued frustration with the process,” a spokesman for McConnell told Fox News. “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.”
If McConnell is not willing to or able to force a disagreement with the House by adjourning the body, Trump likely will not be able to invoke his power to compel the adjournment, and therefore would be unable to make his recess appointments. That did not stop congressional Democrats from panning Trump’s comments as dangerous and uninformed after his press conference Wednesday.
“That’s what tin-pot dictators do — disband legislators,” Rep. Jamie Raskin, D-Md., said, according to an NBC News reporter.
Rep. David Price, D-N.C., also lambasted Trump’s comments in a tweet.
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“Hi, @realdonaldtrump, former political science professor here. You have no authority to adjourn Congress at-will. I encourage you to take a slightly closer (or even first look) at the Constitution,” he said.
Rep. Justin Amash, I-Mich. — a former Republican who has been critical of Trump and is considering a third-party presidential run — noted that Trump does not have the power to disband Congress unless McConnell finds both a will and a way to clear the runway for the recess appointments.
“Without one chamber participating in this improper scheme, this action would be unconstitutional,” he said. “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.'”
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Recess appointments have long been controversial and it is unlikely Senate Democrats, and some Republicans, would be excited to cede authority to stamp their approval on executive officials. Although Obama’s unconstitutional recess appointments move was different than Trump’s theoretically constitutional suggestion, McConnell called Obama’s action a “brazen power grab” in 2014 after the Supreme Court ruled against the then-president, according to a Washington Post story from the time.
The posts Trump would be aiming to fill would largely be the non-Cabinet positions at executive agencies that have been on the backburner in the Senate. With Senate Democrats feverishly resisting and delaying many of Trump’s appointments, McConnell has been forced to prioritize which nominees he would confirm and these posts largely are what fell by the wayside.
“There’s only so many hours in the day when you go through judges and you go through lengthy hearings on judges that they know should be approved immediately and they can do it in one session and they can do it in one hour,” Trump said Wednesday, complaining about Democrats’ delay tactics.
One vacancy that fits the bill for what Trump said he wants to do is the spot for chief counsel for advocacy in the Small Business Administration (SBA). Trump first nominated David Christian Tryon to the post in 2017, but the appointment has languished for years, with Trump most recently re-nominating Tryon in early March.
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The chief counsel for advocacy for the SBA’s job is to amplify small business’ concerns in conversations with the White House, Congress and other parts of the government — a position that might take on increased importance as the U.S. tries to dig itself out of the economic hole caused by shutting down large portions of the economy in its fight against the coronavirus.
There are also over 200 other vacancies in agencies like the Department of Commerce, the Department of Health and Human Services, the Department of Housing and Urban Development and more, according to a tracker set up by the Partnership for Public Service, working with The Washington Post.
“We need people for this crisis and we don’t want to play any more political games. I’ve been waiting for two-and-a-half years, three years for some of these people,” Trump said Wednesday. “It’s ridiculous.”
Fox News’ Chad Pergram contributed to this report.
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