Donald Trump has not even returned to office, and already a constitutional crisis may be in the making. Trump has started announcing the people he intends to nominate for positions in his new administration. That is his prerogative. Several senators have criticized some of Trump’s choices. That is their prerogative (and two Trump nominees have already withdrawn under pressure). But rumors have been circulating of a plan to have Trump dismiss the Senate altogether, in a desperate effort to jam his nominees into office. There is simply no way to do this consistent with the text, history, and structure of the Constitution.
The Constitution and laws require the Senate’s approval to fill many of the government’s most important offices—such as attorney general or secretary of state—all of which wield extraordinary powers on behalf of the public. The Senate’s involvement helps to ensure that the people in these jobs have the necessary competence and integrity. In Alexander Hamilton’s apt words, the Senate can prevent the appointment of “unfit characters” who would be no more than “obsequious instruments” of the president’s “pleasure.”
The Senate’s check on the president can of course lead to friction and frustration at the start of an administration, while a new president’s nominees are considered and sometimes even rejected by the Senate. Advice and consent takes time. But as Justice Louis Brandeis famously observed, checks and balances exist “not to promote efficiency but to preclude the exercise of arbitrary power.” The purpose of the Constitution “is not to avoid friction” but “to save the people from autocracy.”
That is why any effort to cut the Senate out of the appointments process would be troubling; it is disdainful of self-government under a Constitution altogether. Trump’s supporters have suggested two ways to get around the Senate’s advice-and-consent process. In the first, the Senate would vote to go into recess soon after Trump’s inauguration, allowing him to unilaterally make a series of “recess” appointments. That plan may formally be legal, but it is plainly improper. The president is authorized to make recess appointments to “ensure the continued functioning of the Federal Government when the Senate is away,” as Justice Stephen Breyer wrote for the Supreme Court in 2014. That mechanism was vital in an age when the Senate was frequently absent from the capital for months at a time and could not quickly and easily reconvene. But, as Breyer also noted, the Constitution does not give “the President the authority routinely to avoid the need for Senate confirmation.” For the Senate to go into recess at the beginning of a new administration for the sole purpose of allowing the president to fill up the government with whomever he pleases—all while the Senate is controlled by the president’s party and perfectly capable of considering his nominees—would be a clear misuse of the recess-appointment power. Happily, the new Senate seems to agree, balking at Trump’s request that it surrender its prerogative so meekly.
As a result, some House Republicans have begun to discuss a more extreme scheme, one Trump considered during his first term: Trump could instead send the Senate home against its will and fill the government during the resulting “recess.” This is flagrantly unlawful.
How, one might ask, would such a plan even work? After all, the president, unlike an absolute monarch, does not have the power to dismiss Congress whenever he wants. Three of the first six “abuses and usurpations” charged in the Declaration of Independence related to King George III’s treatment of legislatures: He had “dissolved Representative Houses repeatedly,” he had refused to hold elections after these “dissolutions,” and he had “called together legislative bodies” at “distant” and “uncomfortable” places. The Framers were careful not to entrust the new office of president with such potent tools of “tyranny.” Instead, the president was given the power to “adjourn” the houses of Congress in only one narrow circumstance: “in Case of Disagreement between them, with Respect to the Time of Adjournment.” This power is so limited that it has never been used in all of American history.
The House Republicans’ idea seems to be to manufacture a “disagreement” to trigger this adjournment power. First, the House of Representatives would pass a resolution calling for a recess. The Senate would then (in all likelihood) refuse to pass the resolution. Trump would then declare the houses to be in “disagreement” and adjourn both houses for as long as he likes. From there, he would start his recess-appointments spree. There is just one glaring problem: The “disagreement” in this scenario is illusory.
Under the Constitution, each house can generally decide for itself how long it will sit. As Thomas Jefferson, an expert on legislative procedure, wrote in 1790: “Each house of Congress possesses [the] natural right of governing itself, and consequently of fixing it’s [sic] own times and places of meeting.”
The Constitution limits this autonomy in one key way: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.” In other words, if one house of Congress wants to leave in the middle of a session, it has to get the permission of the other house. The House of Representatives can’t just skip town if the Senate thinks important legislative business remains. But note that this provision limits each house’s power to “adjourn,” and not each house’s power to remain “sitting.” Neither house needs the agreement of the other to stay in session. If the Senate wants to let the House of Representatives leave while it considers appointments or treaties, that is perfectly fine. Indeed, there are plenty of examples of one house giving the other permission to go home. Under Article I, then, each house requires consent of the other to quit, but not to sit.
Hence the trouble for the House Republicans’ plan: If the House of Representatives wants to recess, the Senate can simply let it. And if the Senate agrees to let the House go, the House can leave and there is no relevant “disagreement” for the president to resolve by adjourning Congress. The Senate would still be in session as normal.
The president’s adjournment power is not a backdoor way for one house of Congress to force the other into recess against its will. If both the Senate and the House want to leave, but cannot agree on a “time of adjournment,” then the president can step in. In the words of a 19th-century treatise by Justice Joseph Story, an intervention from the president in that kind of situation is “the only peaceable way of terminating a controversy, which can lead to nothing but distraction in the public councils.” Perhaps if one house of Congress wants to leave, but the other house won’t let it—effectively holding it hostage in the capital—the president could also step in to resolve that disagreement by releasing the house that wants to leave. During the ratification debates in Virginia, James Monroe questioned whether it was proper “that the members of the lower house should be dependent on the senate,” given that they are prevented from “returning home” without the senate’s consent. James Madison responded by pointing to the president’s adjournment power.
What some House Republicans seem to be suggesting is worlds away from those scenarios—it is closer to the prorogation or dissolution power claimed by the British Crown and reviled by the Founders. Simply put, the House of Representatives cannot collude with the president to deprive the Senate of its constitutional power to advise and consent on appointments. That would make a mockery of the Constitution’s text and structure. If the House attempts this maneuver, the Senate should resist it by continuing to meet, and the courts should refuse to recognize any resulting appointments. The threat to adjourn the Senate should be seen and called out for what it is: an autocratic move that is not just unlawful but contemptuous of constitutionalism.
