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“… Trump’s supporters have suggested two ways to get around the Senate’s advice-and-consent process. In the first, the Senate would vote to go into recess soon after Trump’s inauguration, allowing him to unilaterally make a series of “recess” appointments. That plan may formally be legal, but it is plainly improper. The president is authorized to make recess appointments to “ensure the continued functioning of the Federal Government when the Senate is away,” as Justice Stephen Breyer wrote for the Supreme Court in 2014.
… some House Republicans have begun to discuss a more extreme scheme, one Trump considered during his first term: Trump could instead send the Senate home against its will and fill the government during the resulting “recess.” This is flagrantly unlawful.
… The House Republicans’ idea seems to be to manufacture a “disagreement” to trigger this adjournment power. First, the House of Representatives would pass a resolution calling for a recess. The Senate would then (in all likelihood) refuse to pass the resolution. Trump would then declare the houses to be in “disagreement” and adjourn both houses for as long as he likes. From there, he would start his recess-appointments spree. There is just one glaring problem: The “disagreement” in this scenario is illusory.
Under the Constitution, each house can generally decide for itself how long it will sit. As Thomas Jefferson, an expert on legislative procedure, wrote in 1790: “Each house of Congress possesses [the] natural right of governing itself, and consequently of fixing it’s [sic] own times and places of meeting.”
… The Constitution limits this autonomy in one key way: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.” In other words, if one house of Congress wants to leave in the middle of a session, it has to get the permission of the other house. The House of Representatives can’t just skip town if the Senate thinks important legislative business remains. But note that this provision limits each house’s power to “adjourn,” and not each house’s power to remain “sitting.” Neither house needs the agreement of the other to stay in session. If the Senate wants to let the House of Representatives leave while it considers appointments or treaties, that is perfectly fine. Indeed, there are plenty of examples of one house giving the other permission to go home. Under Article I, then, each house requires consent of the other to quit, but not to sit. …”
