Recess for Congress whether they like it or not?

Yesterday Trump threatened to exercise Section 2, Clause 3 of the Constitution by forcing the Congress into recess, allowing him to make recess appointments.

Majority Leader McConnell rejected the practicality of this notion.

Is the president blowing hot air, or not?

I don’t know, so I did some research. The Constitution gives the president the authority to recess Congress in extraordinary circumstances and when the houses do not agree on timing.

We know Pelosi and Schumer will cooperate on every step.

We know the Senate requires unanimous consent to take a bath room break, so Schumer can stop most procedures and force votes. Consequently, Schumer is not going to consent to disagreeing with Pelosi on a recess. So how does the president invoke the Constitution if there is no disagreement.

The only tool in arsenal would seem to be that the Vice President is the presiding officer whenever he wishes to take the chair. Can the VP as presiding officer force this question? I doubt it, so let’s see if we can construct a scenario that could work.

These pro-forma sessions that pretend to be the Congress refusing to recess last only minutes, allow the journal to be approved and set a new time to repeat the farce. Under a recent Supreme Court case this is sufficient since each house writes their own rules and the rules allow this.

So we would have to look at the Senate rules to find an opening.

When the Senate is called into pro-forma session, usually a senator sits as the presiding officer. What if the Vice President were to stride to the podium and demand the gavel. By the Constitution he would get the gavel. He would call the Senate to order and do the Pledge of Allegiance, again by rule.

Then he could turn and look at the empty floor. Any sane parliamentarian knowing Roberts’ Rules of Order would think, “Ah, there is no quorum. I have seen plenty Senate proceedings on C-SPAN2 where senators ‘note an absence of a quorum’ and the place comes to a screeching halt while the presiding officer orders the clerk to call the roll. Why not that?”

So let’s look at the Senate’s rules on quora:

VI

QUORUM - ABSENT SENATORS MAY BE SENT FOR

1. A quorum shall consist of a majority of the Senators duly chosen and sworn.
2. No Senator shall absent himself from the service of the Senate without leave.
3. If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate. 
4. Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order.

So the absence of a quorum could force a recess, if all pieces were to fall into place. But what would that take with a strict reading of the rule?

First a Senator must point the absence of a quorum, not the presiding officer. Next the senators present upon finding the lack of quorum must order other senators back or move to adjourn.

So if the president has in his pocket a group of five senators to show up and ran this play, a recess or adjournment could be ordered.

How would Schumer fight this? He would need to bring his Democrats back to the Senate floor to be able to fight the next step before it is played out.

So what happens if the Democrats appear on the floor to make a show of a quorum or enough to out vote Republicans? Don’t they appear to be able to be on the floor? Why not just do their work rather than disappear from the cameras?

So Trump can win by losing. He can force a large number of Democrats back to DC to appear on the floor. He can force the sense of obstruction on the Democrats.

All the while McConnell can play the great mediator and state that he sides with the Democrats. He just needs a handful of Republicans to “fight him” on the matter.

What if Trump wants to up the ante? What if does not want play out the quorum game? Can he force a vote of some type?

The Senate can suspend the rules of the Senate by unanimous consent and without notice or it can entertain a motion to suspend the rules on one day’s written notice.

V. SUSPENSION AND AMENDMENT OF THE RULES

1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day's notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.
2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

So at the key moment, a senator can ask for unanimous consent to suspend the rules and push a recess. Since the Democrats have a person ready to object, that likely won’t work.

What if the Senator puts written notice of a motion to suspend the rules? Again all the Democrats get recalled to DC to fight the action.

Again Trump stands to win by losing in forcing Democrats back to DC.
So if Democrats really want to avoid DC, they have two choices: suck it up and return or Trump gets his recess dispute.

What do I have wrong in this analysis? It can’t be this straightforward.

Democrats at Risk of Splitting?

This Nation article suggests problems if the Democrats go to a brokered convention in Milwaukee. The key premise seems to be, "Solidarity is a virtue that must be practiced as well as preached."

This notion seems to a derivation of "We must hang together because surely we will hang separately," which Benjamin Franklin is reputed to have uttered shortly after leaving the Continental Congress on signing the Declaration of Independence and formally being in active treason against the monarchy.

This same notion of "unity at all costs" has driven many military and political decisions over the years. The United Nations (the military version) that prosecuted the war for the Allies lived out unity at all costs every day of the war. Most political parties, like the GOP with McCain and Romney as their presidential nominees, lived out this unity at all costs mentality. The British Conservative Party played it out repeatedly trying to stuff bad Brexit bills down the public's throat.

All of these political examples called for unity against political rivals as if the next election was make or break for the whole polity. They rely on a view of politics informed by war. In war, you must win or else your civilization faces annihilation. History demonstrates that a civilization that loses 30% or more of its population to war often never recovers. It may survive the war, but not the next conqueror whether by war or political annexation.

When politicians use rhetoric, they rely on the emotionally charged speech of war time to agitate for a win at the ballot box. They see each election as the last for their side. In some respects that has been true for generations one direction more than the other. When Democrats win, they put their big government policies into effect in great leaps like the New Deal or Great Society. When the GOP comes into office, they make small changes and Democrats shriek. Little is done favoring long term GOP goals. The ratchet of movement moves toward Democrat policies and lock out real GOP counter movement. The same holds true in the UK and other countries.

Yet when did Brexit fly through Parliament? Not on unity at all costs. It was after the Conservative Party let the political dispute play out in its entirety. Teresa May was a dead prime minister walking. She had been pushed forward not on her merits but as a "unity at all costs" candidate. The candidate that no one hated but no one wanted. She called a general election and got a smaller majority. Stupid in hindsight, even if smart in foresight.

Then when Boris Johnson looked like the favored candidate of the grassroots and not the party elders, there was a problem. The Conservatives could not afford to lose anymore of the majority and the Conservatives were already at war with themselves and other parties. They needed unity no matter the cost. Even at all costs.

What did they do? They did not do a repeat of the May selection, or John Major selection or Gordon Brown selection. They followed party rules and put the vote to the wider party, knowing that Johnson would likely win. He did. Triumphantly.

What then happened? Johnson now had the mandate of his party to move toward a general election and fight in parliament, with parliamentarians knowing that Johnson would win any calls to party loyalty, so resistance was futile within the party.

Now Johnson had full and undisputed control over his party and he would press forward with a general election on terms of his choosing. No compromises with his party. He could now focus on compromises with persons outside his party. He could seek to build a broader coalition on his own terms. He did. He destroyed Labour and made the Scottish National Party powerful only in Scotland and irrelevant in Westminster Palace, where Parliament sits.

Johnson followed something similar with Trump in 2016. Trump fought through a tough and close primary, winning votes but not necessarily the loyalty of his party. When he won, he got begrudging respect, before the Russia hoax started putting the GOP and Speaker Ryan on their heels. They were constantly afraid of claiming Trump's standard because he might be gone at any moment.

Trump fought and the GOP fled. Nancy took the Speaker's gavel. Trump fought on. Chuck's stupidity on Supreme Court nominations and Nancy's whole party charade collapsed. Suddenly Trump who had followed the process and pushed his agenda forward is nearly the only man standing.

Now Trump is in the position to be able to dominate the GOP without fear from party holdouts. Trump can now reach out to his opponents' base to obtain new converts. For now loyal Trumpists. Once with Trump and they find the GOP welcoming, maybe later converts to the party itself. Maybe not. But the first step of the long journey is beginning.

So what should the Democrats do?

These examples suggest the best solution is not to short cut the process with "unity at all costs." That hides disputes and divides loyalties while leaving the grassroots without a real voice. The fight should be had all the way to and through the party convention. Only at a party convention can the grassroots' voices be heard on detailed platforms, ideas, and leaders.

A bruising and drawn out fight may not give them a good candidate. They may end up with their own Gordon Brown, Jeremy Corbyn, Teresa May, or Bernie Sanders. But having the loser candidate with the right credentials may be the first step to having real unity.

Some times bad ideas need to be played out in full to be truly demonstrated to be bad to all players, even the grass roots. Then in the next round more players of different viewpoints and attitudes will step forward to say, "Let's not go down the 2020 road and over the cliff again. I have another path. It is covered with weeds, but I think we can clear the path that can be turned into a highway over time."

That fight may be military like. It may take the destruction of 30% of the party's ideals and attitudes to never be resurrected. But then the Democrat Party of a different composition can begin to grow.

That new Democrat Party may be more socialist and purge the centrists. It may be more centrist and purge the socialists. In either case, it will be more coherent and self-consistent. The people can clearly accept it or reject it. In that situation America will be better off than a hodgepodge of compromises done in the smoke filled rooms where no one knows why one leader is up and another down.

The Democrats should burn the boats and push forward. Guarantee will be the 2024 Democrat Party will be different than 2020's, and America will be the better for it.