The last time the Supreme Court ruled on an issue related to congress not formally adjourning session they left open the door to support Executive Branch invocation of Article II, Section 3, during an “unusual circumstance” or “national catastrophe.”
Today President Trump warned congress he may invoke Article II, sec 3, due to the COVID-19 crisis and his need for administration positions that have been delayed by democrats in the Senate for more than two years.
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The coronavirus pandemic would seem to qualify as an “unusual circumstance” where recess appointments would be needed, valid and justified. However, senate democrats would likely fight any attempt in court. The Senate has refused to adjourn session since President Trump was inaugurated, and multiple cabinet officials have been blocked from confirmation.
According to Politico:
“Leader McConnell had a conversation today with the president to discuss Senate Democrats’ unprecedented obstruction of the president’s well-qualified nominees and shared his continued frustration with the process,” said a McConnell spokesman. “[McConnell] pledged to find ways to confirm nominees considered mission-critical to the COVID-19 pandemic, but under Senate rules that will take consent from Leader Schumer.” (link)
After the prepared remarks from President Trump, he explained why he is now looking strongly at the possibility of triggering the forced adjournment:
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Success in the courts would be a 50/50 proposition. Generally the courts lean toward supporting the separation of power and there’s ample loony activist judges to support the Democrats. However, that said, the urgency of COVID-19 could very possibly tip the scales in favor of the executive branch during this crisis.
Ultimately the battle is more-or-less political. Democrats and their media allies will weaponize any article II invocation effort to frame President Trump as a dictator. As long as the Democrats have the DNC national media as their ally, public opinion on the issue would be challenging.
