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Unconventional Politics: Why Adjourning of Congress by Trump Not Impossible Amid COVID-19 Crisis

© REUTERS / JOSHUA ROBERTSU.S. President Donald Trump speaks about the administration's response to the coronavirus disease (COVID-19) outbreak during the daily coronavirus task force briefing at the White House in Washington, U.S., April 5, 2020
U.S. President Donald Trump speaks about the administration's response to the coronavirus disease (COVID-19) outbreak during the daily coronavirus task force briefing at the White House in Washington, U.S., April 5, 2020 - Sputnik International
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Donald Trump's threat to adjourn the House and Senate in order to urgently fill government vacancies has prompted a lively legal discussion with regard to limits of executive power. American professors of law have weighed up whether Trump will deliver on his threat and why it is probable.

On Wednesday, Donald Trump stated that he was ready to adjourn both chambers of the US Congress in order to make recess appointments, referring to a Constitutional provision that has never been used before. The president argued that Democratic lawmakers had repeatedly hindered his effort to appoint his nominees.

"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, and we're not allowing that to take place through our Congress. They're just not giving it to us. We have many positions that are unstaffed because we can't get approval," Trump told journalists during a Wednesday press briefing.

'Adjourning Isn't on the Table'

Though Article 2, Section 3 of the US Constitution does provide the president with powers to convene and adjourn Congress, it stipulates that it can be done only under specific conditions.

The provision reads that the president "may, on extraordinary occasions, convene both Houses or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper."

Congress is currently in recess until May 4 to avoid transmitting COVID-19 but it is operating pro forma sessions, thus preventing Trump from forcing through nominations without congressional approval.

Trump cannot make appointments during pro-forma sessions as in 2014 the US Supreme Court ruled that the practice was unconstitutional in response to the Republicans' complaints against then-President Barack Obama, who tried to fill government vacancies without consulting US congressmen.

A day after Donald Trump cited the Article 2 provision, the US Senate scheduled even more pro forma sessions, as The Hill reported Thursday, adding that the upper chamber is now expected to meet roughly every three days until 4 May.

​It is highly unlikely that Trump would resort to adjourning Congress, particularly during this time of pandemic, says Robert Sedler, distinguished professor of law from Wayne State University.

"No President has ever tried to adjourn the Congress. President Trump has made this threat and said that if he did so, there would be constitutional challenges to the President's action," the professor opines. "Since the president stated that he was adjourning the Congress so that he could make recess appointments, there is a strong argument that this would be unconstitutional. In effect, the president would be admitting that he was trying to prevent the Senate from exercising its constitutional responsibility to approve presidential appointments."

David Levine, professor of Law at Hastings College of the Law at the University of California, shares Sedler's scepticism. He cites the fact that the present situation does not specifically meet the conditions mentioned in the constitutional provision in question.

"The leaders of the House and Senate have no disagreement about the date of adjournment of this Congress, which will be in January 2021. They are extremely unlikely to create a disagreement on this issue in order to satisfy Mr. Trump's desire to invoke this power," he underscores.

According to Levine, the US president laid it on thick when he claimed that Congress hinders his work: due to the fact that his Republican allies control the Senate, "Mr Trump has appointed record numbers of federal judges already, he points out.

On the other hand, the academic continues, "the vast majority of positions in the federal government do not even need Senate confirmation". Yet another issue is that the Trump administration "has failed to nominate people for many positions in the government, which would need confirmation", Levine stresses.

"Mr. Trump needs to work with Senators McConnell and Schumer to ensure that well-qualified nominees for key senior positions – especially COVID-19 related ones – are given prompt hearings and approval. Under our Constitution, he can't do this entirely on his own", the professor summarises.

'No One Should Doubt Trump If He Vowed to Exercise His Power'

A completely different stance is held by John Plecnik, associate professor of law at Cleveland-Marshall College of Law: according to him, "no one should doubt the president if he promises to exercise his power to adjourn or recall Congress for a special session under the US Constitution".

"President Donald Trump has proved many times over that he is not your conventional politician", Plecnik notes. "Yes, President Trump might be the first in history to do it, but I don't doubt it is on the table."

Likewise, the professor challenges the idea that Trump's potential move could be qualified as unconstitutional: "President Trump has already appointed two Justices to the Supreme Court of the United States", he notes. "With the current makeup of the Supreme Court, I believe that President Trump's actions would be ruled Constitutional if challenged."

At the same time, from a political standpoint, "obstruction is seldom popular" in times of crisis, the academic opines.

"Right now, the President has more leverage than usual to demand that Congress act, even if the opposing political party is campaigning hard to unseat him", he believes.

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