The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Potential Constitutional Hardball in a Republican-Controlled Senate
President Biden could adjourn Congress to make recess appointments. Or Vice President Harris could simply refuse to recognize Senator McConnell as majority leader
If the Democratic candidates in Georgia are able to win both seats, the Senate will split 50-50, and in light of Vice President Harris's role, the Democrats would be deemed the majority party. But if one, or both Republican candidates prevail, the Republicans would be deemed the majority party. If Senator McConnell has the gavel, then there is no guarantee that President Biden's nominees will get floor votes. Moreover, legislation that passes the Democratic-controlled House would be dead on arrival. Is there anything the Biden Administration can do to break that gridlock?
Noel Canning effectively foreclosed the use of the recess appointment power with a divided Congress. So long as McConnell keeps Senate breaks less than three days, there would not be a recess long enough to trigger the Recess Appointments Clause. But Noel Canning recognize a workaround: the President can adjourn Congress, force a recess of sufficient length, and make a recess appointment. (Noel Canning was not clear on how long that break had to be; ten days is presumably enough). In Noel Canning, Justice Breyer wrote:
Finally, the Solicitor General warns that our holding may "'disrup[t] the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.'" Brief for Petitioner 64 (quoting Morrison v. Olson(1988)). We do not see, however, how our holding could significantly alter the constitutional balance. Most appointments are not controversial and do not produce friction between the branches. Where political controversy is serious, the Senate unquestionably has other methods of preventing recess appointments. As the Solicitor General concedes, the Senate could preclude the President from making recess appointments by holding a series of twice-a-week ordinary (not pro forma) sessions. And the nature of the business conducted at those ordinary sessions — whether, for example, Senators must vote on nominations, or may return to their home States to meet with their constituents — is a matter for the Senate to decide. The Constitution also gives the President (if he has enough allies in Congress) a way to force a recess. Art. II, § 3 ("[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper"). Moreover, the President and Senators engage with each other in many different ways and have a variety of methods of encouraging each other to accept their points of view.
In April, I wrote about the possibility of President Trump exercising this power. He ultimately did not. Now, Professor Peter Shane writes that the adjournment power may be a tool for the Biden Administration's arsenal:
But here's the surprise Biden could spring: The so-called adjournment clause in Article II, Section 3 of the Constitution anticipates the possibility of a "disagreement" between the House and the Senate "with Respect to the Time of Adjournment." Should that happen—for example, if one house of Congress wanted to leave town and the other wanted to stay in session—the Constitution authorizes the president to adjourn both chambers "to such Time as he shall think proper." If House Speaker Nancy Pelosi were amenable, she could propose to the Senate a 10-day period of adjournment, which would be long enough to enable recess appointments. The Senate likely would disagree in order to block those appointments. But that refusal would trigger the president's adjournment power. With the Senate adjourned for at least 10 days, an entire cabinet and its principal deputies could be appointed.
Shane acknowledges that no President has ever used this power before. But hardball.
During the founding era, the adjournment power elicited virtually no debate. Its actual purpose is obscure; it seems to be a kind of truncated holdover from the Crown's power to "prorogue," or dissolve, Parliament. But if Biden wants to play hardball, this clause offers a potentially big bat with which to threaten the opposing team.
Professor Neil Buchanan writes about some even harder hardball. Forget recess appointments. Vice President Harris, as President of the Senate, could simply refuse to recognize Senator McConnell as the majority leader.
There is only one constitutional statement regarding the leadership of the Senate, which is that the Vice President is the presiding officer of that house of Congress. Moreover, the leadership norms that have governed the Senate in our lifetimes are not even set by statute, much less in the Constitution itself. They are truly norms. Thus, I argued, the Democrats could (but probably will not) employ a Republican-style breaking of norms by having Vice President Kamala Harris refuse to recognize Mitch McConnell as the person who actually dictates the business of the Senate, including most importantly the determination of which items of business receive floor votes.
Presumably, Harris could force floor votes on pending judicial nominees, and perhaps even force floor votes on legislation that passed the House. Buchanan explains:
Vice President Harris can give "priority recognition" to any senator to control the agenda and to schedule floor votes. She could designate McConnell, but she could also designate Schumer, Tammy Baldwin, Mitt Romney, Lisa Murkowski, or even the newest Senator, Mark Kelly of Arizona. (Susan Collins would surely be too "concerned" to accept the position.) Notably, because any attempt to amend the Senate's rules to formalize McConnell's power would have to be brought up for a vote, Harris could prevent that from happening. . . . Harris could thus simply say that Biden's nominees will all receive votes, and if Republicans can muster 51 votes against any of them, so be it. The point would be to hold that up-or-down vote, on the record.
I do not know nearly enough about the Senate's rules to decide if this move would even be feasible, absent a rule change. And presumably, that rule change would require a majority. But hardball.
What is the next level of the hardball? Can McConnell call the Sergeant at Arms to arrest the President of the Senate, who refuses to recognize him? Hardball. Or if the GOP takes the House in 2022, could the sitting VP be impeached? (We could finally see what happens if the VP has to preside at her own impeachment trial). Hardball.
Hardball. Get used to that phrase. Hardball. You will be hearing it nonstop for the next four years. I would be much more comfortable if people simply admitted that "hardball" is code for "We have power so we will use it." Trying to dress up and justify politics in euphemistic constitutional garb has never interested me.
