U.S. Capitol photo by Dion Hinchcliffe
Sometimes institutional imperatives trump party loyalty, even in the hyperpartisan atmosphere of the Trump era. And often, that’s a good thing.
Back when Democrats controlled both the Senate and the White House, senators tried to block President Obama from doing an end run around their chamber’s power to approve – or not approve – his executive branch nominees. To prevent the president from making recess appointments when the senators were out of town, Democrats scheduled brief sessions every three days just to make the point that the Senate was not, technically, in recess.
In his characteristic fashion, Obama made the appointments anyway. He was eventually reversed by the Supreme Court, all nine of whose justices agreed that his appointments were illegal. The presidential power to make recess appointments at all barely survived the case; four justices would have eliminated such action except for vacancies that both arose and were filled during a Senate recess. However, Justice Anthony Kennedy and the court’s more liberal wing left the recess appointment more or less alone; they merely slapped Obama’s wrist for making recess appointments when there was no recess.
While the Supreme Court decision had little in the way of practical impact – Democrats later ratified his appointments to the National Labor Relations Board, with the help of altered filibuster rules – Senate Republicans made certain that he had no chance to try for a bigger win once they controlled the chamber. Fearing that Obama might attempt to push a successor to the late Justice Antonin Scalia through any gap in the Senate calendar, they made sure no such gap existed.
Now the shoe is fully on the other partisan foot, with Republicans controlling the Senate and the Oval Office. But once again, the senators have acted to preserve their prerogatives. Although virtually all the senators are spending these August dog days somewhere other than Pennsylvania Avenue, they did some housekeeping just before leaving town: they set up a schedule to have some Republican gavel the chamber into session once every few days.
These short, pro forma sessions typically include little, if any, legislative business and very few legislators. Many of them last less than a minute. But they are sufficient to close the window that would allow a president to make a proper recess appointment. While Senate Republicans have used them as a check on first Obama, and now Trump, the strategy was originally pioneered by Democrat Harry Reid, who began the practice during George W. Bush’s administration. After the Obama-era Supreme Court decision, presidents of both parties are on notice that pro forma sessions are, indeed, enough to count Congress as in session, no matter how ridiculous their appearance.
Some observers may wonder why Majority Leader Mitch McConnell would interrupt his colleagues’ vacations to hold a pro forma session every three days this summer in particular. The most likely reason: There has been some speculation that Trump might use a Senate absence to fire and replace Attorney General Jeff Sessions. Whether this is true or not, any such gambit would have been ill-advised for a host of reasons, not least of which is that the Trump White House really could use all the appointment-vetting help it can get.
Unlike his predecessor, Trump has shown little inclination to brazenly defy the law and then say “so sue me.” So it looks to be a pretty quiet end of summer in the Senate.