Chad Pergram with Fox News is reporting this morning that House Democrats want to adjourn Congress at the last possible moment as part of a strategy against Trump recess appointments:
FOX NEWS – Before starting the new Congress, the current (old) Congress must adjourn sine die (pronounced sy-nee DIE). That’s Latin for saying the current session ends “without a date to resume.” Congress could conceivably adjourn the 116th Congress sometime in December. But that presents President Trump with a wide berth to prospectively make a recess appointment to the federal courts. The Constitution requires Senate confirmation of executive and judicial branch appointees. But Article II, Section 2 of the Constitution allows the president to fill open posts when Congress is out of session or “adjourned.” Official Washington colloquially refers to such a maneuver as a “recess appointment.” But frankly, everyone should probably call it an “adjournment appointment.” A congressional “recess” is parliamentarily different from an “adjournment” on Capitol Hill.
If the House and Senate were adjourned sine die for the 117th Congress, Trump has an opportunity to short-circuit the confirmation process and make a recess appointment. Thus, Democrats want to block the president from that option. The Constitution requires both the House and Senate agree to adjourn. Otherwise, the bodies must huddle for at least a few moments at three-day intervals. But the Democratically controlled House wouldn’t let the Senate get away with adjourning. So Congress likely won’t adjourn sine die until 11:59:59 a.m. ET on Jan. 3 – the last possible moment it can remain in session. This hermetically seals the aperture between the end of the 116th and the constitutionally mandated start of the 117th Congress: Jan. 3 at noon ET.
It sounds like they could easily prevent Trump from making recess appointments.
But it’s not that simple because there’s a Defense bill (NDAA) that needs to be passed…
Moreover, there is another scenario on the table, which concerns lots of Democrats and some Republicans: a possible veto of the annual defense policy bill. Trump has threatened to veto the measure. Trump opposes language in the bill to change the names of military bases titled after Confederates. And the president demanded that lawmakers include an extraneous provision in the package to terminate Section 230, which is shorthand for a portion of telecommunication law that shields Big Tech firms from liability.
Regardless, the House and Senate both appear to have the votes to override the president on that issue.
Starting the new Congress on Jan. 3 may help Congress get around a threatened veto – if lawmakers pass the defense bill soon. However, if Congress passes the defense bill too close to the end of the 116th Congress, it’s possible Trump could conceivably use his “pocket veto” to dismiss the defense bill.
Pocket vetoes are extremely rare and require a unique set of parliamentary circumstances for the president to even have the option. But one could exist in these circumstances.
A “regular” veto is just that. Congress passes a bill. Sends it to the White House. And the president, rather than signing the bill, vetoes it.
However, the “pocket” veto option is available to the president if Congress sends him a bill close to the end of a congressional session.
Congress could pass the final version of the defense bill and send it to the president. If lawmakers dispatch the paperwork to the White House too close to the end of the 116th Congress (remember, the 10 days, Sundays excluded business from Article I, Section 7 of the Constitution), the president can sidestep the prospect of an override effort by simply holding onto the defense bill. He doesn’t have to sign it. He doesn’t have to veto it. He just holds it in his pocket (hence, the term) until the current session of Congress expires.
If Congress adjourns sine die and there is no action by the president on the bill, he has effectively vetoed the measure. Congress has no recourse. The legislation dissolves into thin air. It must start with a new bill in the new Congress.
I think the bottom line is that if they want the defense bill to pass without having to start over, they need to pass it soon so they have time to override Trump’s potential veto, which they can do. But if the process takes too long, they’ll run out of time and potentially end up starting over from scratch. Which I doubt is a huge deal, but with a new Congress coming in January, the members willing to override may not be as predictable as it is now.
I suspect they will get the NDAA passed, let Trump hold on to it for 10 days, and then come back to override it before January 3rd. But it could be interesting if it doesn’t exactly play out that way.