In the Atlantic (gift link) Law professors Akhil Reed Amar, Josh Chafetz, and Thomas P. Schmidt analyze Trump and Co’s nefarious plan to circumvent the Senate’s advise and consent role:
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.”
Trump would prefer that the Senate agree to recess so that he can install the rogues gallery of drunks, traitors, rapists and freaks to the cabinet positions he needs to wreak revenge on his enemies. So far, it doesn’t seem that the Senate is willing to go along, preferring to maintain their prerogatives. For now, at least.
But Trump has a Plan B, which I’ve written about before. The authors say it’s unconstitutional on its face:
[S]ome 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 plan is for Trump and Mike Johnson to collude to create a phony “disagreement” by passing a resolution to recess after which the senate supposedly will resist and refuse to pass it. Then Trump will say they disagree and adjourn both houses and appoint all the weirdos he chooses. They say this isn’t the way any of this works:
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.
Here is their advice:
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.
For some reason, my first impulse was to think “well, that means they’re definitely going to do it.” That’s because the majority is obviously contemptuous of constitutionalism and I suspect the courts are highly unlikely to defy the president’s prerogative to do what he wants.
Whether Trump has to do this is another story. My guess is that the senate will approve any picks he wants them to approve. What we’re seeing is that Tump doesn’t really care that much about any of this and will dump them if they’re too much trouble. So, it probably will never come to this. They’ll give him what he wants.