| Get Jonathan Bernstein's newsletter every morning in your inbox. Click here to subscribe. The most important thing to know about President Donald Trump's out-of-nowhere threat to adjourn Congress and make recess appointments because Democrats are blocking his executive-branch nominees isn't whether he can do it or whether he should. It's that his complaint is entirely untrue: Democrats aren't blocking his executive-branch nominees. This is just basic Senate procedure. Republicans hold a 53-to-47 majority, and also win tie votes because they hold the vice presidency. That means they have majorities in every committee, and they schedule final confirmation votes for every nominee who clears those committees. To be sure, Democrats can still stall this procedure … for two hours. So it's entirely fair for the president to complain about that delay. And for Trump's first few years, before the procedure was changed, Democrats were able to slow things down enough that not everyone could get through. But even then, Republicans were able to choose the order in which nominations were confirmed; now, without even the ability to slow the pipeline, Democrats have about zero say in the process unless there are defections from the other side. In fact, there aren't even a lot of blocked nominees at all. Of the 750 or so most important positions needing Senate confirmation, only 82 are currently under consideration. Of those, only a small number have been cleared by committee and are awaiting a floor vote. A much larger group, 165 in all, are still open because Trump hasn't nominated anyone. Despite what the president says, that's not a lot of current nominees before the Senate by historical standards. And of course some of them were just recently nominated. All the rest are in limbo because of either Republican opposition or Republican indifference. Trump's grievance, to the extent he has one, is with Senate Majority Leader Mitch McConnell and the Republicans. Not Democrats.
In any event, the clause Trump seems to have in mind is in Article II, Section 3 of the Constitution. It appears to allow the president to adjudicate if the House and Senate can't agree on whether to stay in session: "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." This provision has never been invoked, and it's not clear exactly what it means. It came up when Republicans were filibustering President Barack Obama's nominees, and the House was refusing to take recesses of more than a few days to prevent him from making recess appointments. I wrote about the clause at the time, and some liberal pundits called for invoking it. Since then, the Supreme Court, in the Canning case, stripped the president of most of the recess-appointment power, and the Senate got rid of filibusters on nominations. I should add: I think the court was wrong in that case and that Trump should have the power to make recess appointments in this situation; Congress's use of pro forma sessions is an abuse of the process. But the court has spoken, and Democrats are going to copy what Republicans did. It doesn't matter much anyway with a Republican Senate majority. Would Trump's plan work? The initial reaction from congressional rules mavens seems to be: maybe, but it would certainly require McConnell's cooperation. And since the dispute (to the extent there is one) is with McConnell anyway, the whole thing seems entirely beside the point (see Dahlia Lithwick for a fine longer discussion of the clause, but without the important context of what has actually been going on in the Senate). Why, then, did Trump raise it? One possibility is that he's trying to create a distraction to avoid questions about his response to the pandemic. But I'm always skeptical of such theories. Some reporting suggests that McConnell himself is keeping Trump misinformed, although it seems less likely that he'd put the Adjournment Clause in the president's mind. A final alternative is that Trump sincerely but incorrectly thinks that Democrats are blocking his nominees. That seems more plausible to me. In a normal White House, the legislative-affairs office would brief the president about what was going on and what his options might be. In this case, it's possible that Trump heard about it from Fox News, a misinformed staffer or a friend who got it from who knows where. But once more: The bottom line here is that Democrats simply aren't blocking Trump's nominees, and certainly not for any significant length of time. So as much fun as it is to explore weird scenarios and obscure constitutional clauses, the whole premise of Trump's complaint is simply wrong. 1. Dave Hopkins on Trump, the Republican Party and fighting the coronavirus. 2. Matt Grossmann on who Americans trust in a crisis. 3. Several political scientists at the Monkey Cage onconservatives and government spending. 4. Sarah Posner on evangelical pastors and the pandemic. 5. Reid Wilson on the World Health Organization. 6. Aaron Blake on coronavirus myths. 7. And Alissa Wilkinson on Trump and "Mutiny on the Bounty." Get Early Returns every morning in your inbox. Click here to subscribe. Also subscribe to Bloomberg All Access and get much, much more. You'll receive our unmatched global news coverage and two in-depth daily newsletters, the Bloomberg Open and the Bloomberg Close. | 
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