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.