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Trump threatens unprecedented move of adjourning Congress to fill vacancies

"Perhaps it’s never been done before. Nobody’s even sure if it has. But we’re going to do it," the president said Wednesday.

WASHINGTON — President Donald Trump threatened Wednesday to adjourn Congress so he can unilaterally install nominees to federal positions that he said are pertinent to the coronavirus crisis, an unprecedented move that critics likened to a dictatorship.

Trump said the Senate should either approve his nominees or adjourn so he can "recess appoint" them. Congress holds pro forma sessions when it isn't working, a process Republicans made common under President Barack Obama to prevent him from temporarily filling vacancies without Senate approval.

"If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers of Congress. The current practice of leaving town while conducting phony pro forma sessions is a dereliction of duty that the American people cannot afford during this crisis," Trump said at a White House briefing. "It is a scam what they do."

"Perhaps it's never been done before. Nobody's even sure if it has. But we're going to do it," he said. "We need these people here."

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The president said Democrats have forced the Senate to eat up time while confirming judges, a top priority of the GOP-led chamber, and as a result, there's "no time for anybody else," like a director of national intelligence and an undersecretary of agriculture to administer food programs.

Trump's comments seemed to come as a surprise to both Democrats and Republicans on Capitol Hill, with aides initially reluctant to comment on the record.

The president has the power to adjourn Congress only if the two chambers disagree with each other, and it's a power reserved for extraordinary circumstances that has never been invoked.

President Donald Trump talks to reporters before signing the coronavirus stimulus relief package in the Oval Office as, from left, Treasury Secretary Steven Mnuchin, Senate Majority Leader Mitch McConnell, R-Ky., and House Minority Leader Kevin McCarthy, R-Calif., look on on March 27, 2020.Evan Vucci / AP file

"To get away with it, he would obviously have to do this with the support of the Senate," said Thomas Mann, a senior fellow in governance studies at the nonpartisan Brookings Institution. "If [Senate Majority Leader Mitch] McConnell agrees to this, it would be the most extraordinary abdication of power. And somehow I can't believe he would do it.

"Maybe in his own mind he's thinking 'This is my way to push Congress out of the way and do anything I want.' It's sort of an autocratic move," he said.

Nearly two hours after the president's remarks, McConnell released a statement defusing some of the tension by underscoring that Democrats would have to agree to adjourn the Senate to allow recess appointments.

"The Leader pledged to find ways to confirm nominees considered mission-critical to the COVID-19 pandemic, but under Senate rules that will take consent" from Minority Leader Chuck Schumer, a McConnell spokesman said.

McConnell's office said Democrats have a history of "obstructing" Republican nominees but couldn't or wouldn't point to any positions that are critical for the pandemic and are being blocked.

The Constitution says the president "may, on extraordinary Occasions, convene both Houses, or either of them, and 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."

Recess appointments are a way to bypass Congress — when it is out of session and unavailable to approve nominees, the president can appoint them without a Senate vote — but the appointments come with strings attached. The nominee can serve for only the rest of the two-year congressional session. The Supreme Court ruled in 2014 that pro forma sessions, when a chamber gavels in and out without conducting business, don't count as recesses for the purpose of appointments.

Mann said he's unaware of any president's having used that power of adjournment, calling it "a power move that a determined Congress can certainly prevent."

To make it possible for the Senate to disagree with the Democratic-led House, the Senate would have to adjourn — a process that requires either unanimous consent of all senators or a vote on the floor. Any party wishing to adjourn the Senate would need 51 votes to do so. Currently, there are 53 Republicans in the Senate.

The move would face pushback from Democrats.

Rep. Jamie Raskin, D-Md., a constitutional scholar, said there's a reason the Constitution doesn't give the president unilateral power to send the legislature home.

"That's what tin-pot dictators do — disband the legislatures" to diminish their power, he said.