President Donald Trump, in the midst of the ongoing battle to deal with the negative impact of the Coronavirus, on Wednesday said that if the Senate does not meet to approve more of his nominees to government he would use a power in the Constitution never before exercised by a president to go around the Senate and make recess appointments to his administration by adjourning both houses of Congress.

Trump denounced the delays in the Senate for some of his nominations saying, “It is a scam what they do.  The Senate should either fulfill its duty and vote on my nominees, or it should formally adjourn, so I can make recess appointments.”

Trump’s ire is over the fact that lawmakers left Washington without formally declaring a proper recess -- the Senate adjourned indefinitely as a result of the coronavirus.  This is a political strategy, i.e., a filibuster lawmakers have employed in the past in order to obstruct the Chief Executive’s nominees, as it had done under the Obama administration.  Trump is citing Article 2, Section 3 of the U.S. Constitution which states:

He [the Chief Executive] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he 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; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The Declaration of Independence was quite clear in its accusation of King George III that the president cannot convene or dissolve Congress at will: “He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.  He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.”

The Framers of the Constitution, understanding that abuse of this power would lead to tyranny, limited the President’s authority over Congress.  To this effect, Alexander Hamilton, in  Federalist 69 wrote: “The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment.”

There is a history of the president conveying Congress “at will” during times of war or economic emergency, but just as President Trump indicated, the Chief Executive has never adjourned Congress as he himself has threatened to do.

 Thomas Jefferson, in his Constitutionality of Residence Bill of 1790 wrote: [emphases added]

Official portrait of President Thomas Jefferson by Rembrandt Peale

“Each house of Congress possesses this natural right of governing itself, and consequently of fixing its own times and places of meeting, so far as it has not been abridged by the law of those who employ them, that is to say, by the Constitution.  [However], 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 [bolded for emphasis].”

Jefferson went on to say:

“But as it might happen that obstinacy, or a difference of object might prevent this concurrence, it goes on to take from them, in that instance, the right of adjournment altogether, and to transfer it to another, by declaring Art. 2. sect. 3. that ‘in case of disagreement between the two houses with respect to the time of adjournment the President may adjourn them to such time as he shall think proper.’”

In order for the Trump to carry this out, he would have to appeal to  Article 2, Section 1, which “invests” the President with “executive power… to the best of [his] ability, preserve, protect and defend the Constitution of the United States.”  Naturally, if Trump does pursue the adjournment of Congress -- the appointment of his nominees to federal positions is distinct issue -- he will be challenged up to the Supreme Court.  If it does get that far, who knows how they will decipher the issue? Again, while it is quite clear in written law that the President is quite limited in his dealing with the Legislative branch, in his Letter to John Bolvin (September 20, 1810), Thomas Jefferson seems to have intuitively settled the matter:

“The question you propose, whether circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice.  A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest.  The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.  To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means…. In all these cases, the unwritten laws of necessity, of self-preservation, and of the public safety, control the written laws of meum and tuum.”