Yesterday’s biggest news was Donald Trump’s announcement that, unless the Senate resumes confirming his nominees, he will adjourn both chambers of Congress and make recess appointments to fill the slots. Trump claimed he has the “constitutional authority” to do this: he is likely referring to Article 2, Section 3, which deals with the relationship of the president to Congress. That section gives the president the power to convene Congress in an emergency—as presidents have done—and also to adjourn them “to such time as he shall think proper.” But there is another clause in that sentence providing that he can adjourn them only “in case of disagreement between [the Houses], with respect to the time of adjournment.”
There is no such disagreement between the House of Representatives and the Senate; they have agreed to end the session on January 3, 2021.
Trump is unhappy because members of Congress have left Washington due to the pandemic, and the Houses are staying open through “pro forma” sessions. These sessions consist of members showing up simply to indicate that their Chamber is still open. They have attracted political controversy for years because these sessions stop a president from making recess appointments.
Trump wants to make recess appointments to insert into office people who would not win Senate approval, such as his current nominee for Director of National Intelligence, John Ratcliffe (R-TX), who had to withdraw the first time Trump considered him because he was unqualified. “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,” Trump said at the day’s coronavirus briefing. “It’s a scam.”
But most of the vacancies that require Senate confirmation are empty not because the Senate is refusing to take them up, but because Trump has not nominated anyone.
Appointments are taking place, however. Because Senate confirmations take time, Senate Majority Leader Mitch McConnell (R-KY) has been focusing on confirming Trump’s judges. Under Trump, the Republican Senate has been packing the courts with judges sympathetic both to business interests and to a strong theory of the unitary executive. The Republican Party is carefully remaking the most durable branch of government to promote business and protect the wealthy, and they are cementing their cause in the courts where judges can protect their ideology even if the American people turn emphatically against it. To this end, McConnell blocked President Barack Obama’s judicial appointments—including one to the Supreme Court—and has rushed through Trump’s, enabling Trump to appoint almost as many federal judges in three years as Obama did in eight.
Not surprisingly, Trump’s judges also tend to adhere to a strong theory of the unitary executive. This interpretation of the Constitution puts the president out of reach of any check from Congress or the courts because that would impinge on the separation of powers, and any check from the FBI or the Department of Justice because those are within the Executive branch. With today’s announcement that, on May 12, the Supreme Court will take up the question of whether or not Congress or a state prosecutor has the power to investigate Trump’s finances, the President’s need for judges who believe in a virtually untouchable executive is likely on his mind as he once again attacks Congress’s independence.
Trump’s belief that the courts will side with him in adjourning both Houses was clear in the briefing. “They know they’ve been warned and they’ve been warned right now. If they don’t approve it, then we’re going to go this route and we’ll probably be challenged in court and we’ll see who wins,” he told reporters.
Still, this was likely an empty threat. The unprecedented step of trying to adjourn Congress would spark a fierce backlash, even among lawmakers in his own party. Trump’s sudden attention to an often-forgotten power in the Constitution’s Article 2, Section 3 would undoubtedly call to mind the famous duty that the same section requires of the president: “he shall take care that the laws be faithfully executed.”
Trump’s dramatic assertion of his authority is likely in part because he remains determined to “reopen” the country against the advice of health professionals, and his insistence yesterday that he had “absolute authority” over the states to do so met with a swift backlash. Reports say that Trump thinks a recovering economy is his best hope for reelection and is keen to get us back up and running.
But business leaders Trump has recruited as part of the effort are warning him that the country needs more testing before Americans will feel safe enough to resume normal lives. “Unless people feel safe and secure and confident around the virus, the economic impact will continue in some way, shape or form,” Goldman Sachs Chief Executive David Solomon has told the president. Polls bear Solomon out: a Fox News poll this week showed that 80% of voters want the federal government to issue a national stay-at-home order, and 47% of them thought Trump was not taking the virus seriously enough. “We have the best tests in the world,” Trump said today, then told reporters that states were “much better equipped” than the federal government to perform such tests. (There is, in fact, a great shortage of tests.)
Still, Trump’s right-wing advisors insist that the economy will only deteriorate unless it opens back up and business resumes. Reopening, they say, will cause coronavirus deaths but prevent suicides. This message is resonating among Trump’s supporters, who blame Democrats for overreacting to the pandemic.
People showing Trump signs and flying Confederate flags organized “Operation Gridlock” in Michigan’s capital of Lansing to protest the shelter-at-home orders lasting until April 30 imposed by Michigan Governor Gretchen Whitmer, a Democrat. Michigan has the third-highest number of COVID-19 cases among the states and the lockdown has lowered infections, but Republican state legislators and congress members have criticized the sweeping order. Drivers of several thousand cars blocked the Lansing streets to protest what they see as an infringement of their liberty.
This dynamic enables Trump to divert attention from his mishandling of the virus by blaming Democrats for the faltering economy. Trump frequently attacks Whitmer, and today’s protesters shouted: “Lock her up.” (Interestingly, CNN ran a story today noting that the world’s female leaders have been far more effective at managing the coronavirus than the world’s male leaders.)
The Michigan protesters say they are worried about paying their bills, which should bring attention to today’s news from the nonpartisan congressional Joint Committee on Taxation, noting that Senate Republicans added a provision to the $2.2 trillion coronavirus relief bill that wealthy investors, especially real estate investors, have wanted since 2017. In addition to the more than $500 billion already in the package, the provision will allow unlimited deductions for businesses losses, a rule that is retroactive for the past five years and which will cost taxpayers about $90 billion in 2020 alone. More than 80% of the benefits of the change will go to those who earn more than $1 million a year. Alan D. Viard of the right-leaning think tank the American Enterprise Institute wrote that the measure “gives businesses badly needed liquidity during the coronavirus pandemic while also reducing the tax penalty on risky business investments.”
An op-ed in the Washington Post today from the leaders of the anti-Trump Lincoln Project urged Republicans to desert the President in 2020. Five prominent Republicans (or former Republicans), including lawyer George Conway III and Republican strategist Steve Schmidt wrote “We’ve never backed a Democrat for president. But Trump must be defeated.” Their op-ed praised former Vice President Joe Biden for putting country over party, and called Trump Biden’s “photonegative.”
“Unlike Trump,” they wrote, “Biden is not an international embarrassment, nor does he demonstrate malignant narcissism. A President Biden will steady the ship of state and begin binding up the wounds of a fractured country. We have faith that Biden will surround himself by advisers of competence, expertise, and wisdom, not an endless parade of disposable lackeys.”
They went on: “We are in a transcendent and transformative period of American history. The nation cannot afford another four years of chaos, duplicity and Trump’s reality distortion. This country is crying out for a president with a spine stiffened by tragedy, a worldview shaped by experience and a heart whose compass points to decency.”
Tomorrow Trump will unveil new federal guidelines to begin the process of reopening the country.
Heather Cox Richardson is a Professor of History at Boston College. This was originally published in her Substack newsletter on January 17, 2020. Subscribe for free here.