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I get a lot of these questions.
“East Congress this week? ”
“Are they on break?”
“Are the House and the Senate meeting tomorrow?”
These questions are innocent, binary. Either the Congress is inside or outside. The answers to these questions, however, are more complex if Congress is technically “recess” – but meets at three-day intervals, as required by the Constitution, in “pro forma” sessions.
It was part of what sparked President Trump the other day. The president has raged over the Democrats blocking his candidates. Besides government funding and the Trump removal trial, confirmation of the candidates is about all that Senate majority leader Mitch McConnell, R-Ky., Has set up the body to do these. last two years. However, the Senate cannot confirm candidates if it does not meet. And, the print of Trump’s remark suggested that he wanted the Senate to really stay “on vacation.” Only then could he short-circuit the confirmation process and install his candidates via a “recreation meeting”.
Article II, section 2 of the Constitution authorized presidents to bypass the Senate and to appoint officials to vacancies if the Senate does not meet.
“I will exercise my constitutional authority to adjourn the two chambers of Congress,” recently thunders the president. “The current practice of leaving the city while hosting fake pro forma sessions is a breach of duty that the American people cannot afford during this crisis. It’s a scam, what they do. “
If the United States were to face a crisis of this magnitude other than the coronavirus – say, the Second World War -, it is a safe bet that each member of the House and of the Senate would be at the Capitol of the United States 24h / 24. But, when the world is faced with a pandemic as virulent as this one, it is simply not certain that hundreds of legislators go to Washington and toil all day at the Capitol. It doesn’t mean having members interacting with thousands of congressional assistants, United States Capitol police officers, journalists, maintenance workers, guards, field guards and everyone else working at Capitol Hill.
By “adjourning” the Senate, it could even be argued that the President would appropriate the coronavirus crisis for political ends and for his candidates.
But let’s explore what President Trump said in the first place.
Former President Obama often moaned that the Senate Republicans had blocked many of his candidates. Today, the shoe is the opposite of Trump and the Senate Democrats. The “blocking who” argument is old on Capitol Hill, but the Senate opposition party’s delaying tactics regarding candidates have increased over the past three decades.
In 2012 and 2013, the Senate met every three days in accordance with the Constitution. The Democrats controlled the Senate at that time. But, the Republicans had the House of Representatives. Article I, section 5 of the Constitution prohibited an organization from fleeing Washington for more than three days, or from “hanging” in Congress lingo, without the blessing of the other. As a result, the GOP-controlled chamber prevented the Senate from withdrawing from protection. This tactic prevented the Senate from finding itself in a parliamentary position under which Obama could schedule a suspension appointment.
Like Trump, brief pro forma sessions of the Senate that lasted only 30 seconds every few days also bothered Obama. So Obama went ahead and still made an appointment during recess. He argued that these abridged sessions were really not sessions at all. Thus, the Obama administration claimed that the Senate was in “recess” and that qualified the president to take a recess appointment.
In 2014, the Supreme Court held 9-0 that Obama’s vacation appointments were unconstitutional. Article I, section 5 of the Constitution granted the House and the Senate the right to establish their own rules. In short, the High Court affirmed that if the Senate said that it was “in session”, then “it is in session”. The executive did not have the right to trample on the legislative power.
Article II, section 3 of the Constitution conferred on the President the power to “convene, on extraordinary occasions, the two chambers or one of them”.
Then President Truman ordered Congress to meet in 1948. This was the last time a President invoked this power. A president has chaired the House and the Senate in session only 27 times in history. But this is where things get complicated. The same part of the Constitution stipulates that the president may, “in the event of disagreement between them, concerning the time of adjournment, he may adjourn them to the time he deems appropriate.”
Let me thread this word a bit.
The Constitution also appears to grant the power to adjourn Congress, if necessary. Never before has an American president attempted to adjourn Congress. Summoning them to session, yes, but leaving the Capitol would be another problem.
You may remember when Prime Minister Boris Johnson controversially “prorogued Parliament” last year in an effort to divert efforts to kill his Brexit plan. This has not happened very often in the UK. “Prorogation” is a term to suspend Parliament.
Multiple sources contacted by Fox News called a potential “suspension of Congress” effort analogous to Johnson’s move to prorogue Parliament. The difference was that in the British system, Johnson was a member of the very body he adjourned. In the American system, as we saw in the Supreme Court case concerning vacation appointments, the executive is separate from Congress. A source even described this gambit as “the end of democracy”. The source argued that the president adjourning Congress “is no small task.”
That said, McConnell is an institutionalist. And, frankly, most members of Congress are also institutionalists. Legislators from both bodies and both parties have been very protective of their rights in Congress. It is therefore unlikely that many lawmakers will remain silent, even if Trump attempted to “prorogue” Congress. And, as we say, no president has ever tried to use this virtually forgotten provision of the Constitution.
However, there is a caveat. Consider the wording of Article II, Section 3, which grants the President the power to adjourn Congress “in the event of disagreement”.
The “disagreement” mentioned here would be what happens, at the parliamentary level, when the House and the Senate have approved different versions of the same bill or resolution. In other words, let’s say that the House passed a bill that costs $ 2 and that the Senate approved essentially the same bill that costs $ 3. The parties would then need to reconcile the differences, either through a conference committee, or by bouncing legislation between chambers until one body accepts the other’s version.
The same could happen with an “adjournment resolution”. This is when the House or the Senate would take off more than three days. In order to fully adjourn, the other agency must also synchronize and approve the same resolution to skip the city for a prohibited period of time.
Consider what it would look like to have a real parliamentary “disagreement” under which Trump could have the power to “adjourn Congress”.
The Senate is expected to pass an adjournment resolution. Next, the House will have to approve an adjournment resolution which sets out different conditions for this suspension. Only then would you have a real “disagreement” between the two organs of Congress. In theory, this is when the president could get involved under the Constitution.
But even if McConnell were to play with Trump’s bet, there is no promise that the House would even get involved. To avoid a parliamentary “disagreement”, the House could simply ignore what the Senate sent regarding an adjournment. Stuff like that happened all the time. The House would pass a bill and the Senate would never study it, or vice versa.
And, if for some reason, even if the President were to “adjourn” Congress, House Speaker Nancy Pelosi, D-Calif., Could truncate it fairly quickly by immediately bringing the House back. Like, in a few minutes. Then the House and the Senate would really not be out of session. This could essentially prevent the President from a “suspension appointment” for a vacant administrative position.
In addition, McConnell has shown himself to be a dedicated infantryman for Trump, striving to confirm many of his appointments. If Congress were to pass additional bills to fight the pandemic, “adjourning Congress” is just the opposite of what the President and the nation would need. It would seem that Congress should be agile and have a parliamentary stature similar to the current one to pass additional legislation on coronaviruses. “Postponing Congress” during a health calamity, just so that the administration can pass through certain appointments may be contrary to the resolution of the current crisis. Few would reasonably argue that a paralyzed Congress at the hands of the President would be productive in the present circumstances.
So back to the original question: are the House and the Senate really “out” right now, even though the two chambers are only meeting a handful of people on board for a minute or two every few days?
The answer is “a little, sorta”. However, the Chamber and the Senate are “in a way” in session at the same time. And, unless the two bodies have a real parliamentary disagreement over a piece of legislation, the administration is unlikely to be able to dictate whether Congress is “in” or “out”.
As the case of the National Labor Relations Board of the United Nations Supreme Court for Labor Relations pointed out a few years ago, if Congress says it is “in”, then it is ” in ”.