A special session for Homeland Security funding?

Early last week, President Trump told the New York Post he was considering calling Congress into special session, in the middle of its two-week Easter recess, to resolve the funding stalemate at the Department of Homeland Security.

At this writing, no such emergency session has been called. If called, it would be a rare invocation of the president’s power under Article I, section 3 of the Constitution, “on extraordinary occasions, to convene both Houses, or either of them.”  

On March 28, Trump had already signed an executive memorandum to pay Transportation Security Administration workers. On April 3, he signed another order to restore pay for nearly all the rest of the Homeland Security workforce, except for ICE and Border Patrol, which had already been forward-funded in Trump’s “One Big Beautiful Bill” last year.

The partial government shutdown this year is already the longest ever, depicted daily on TV by long boarding lines wrapping around airports across the country. Those two pay restoration orders have all but obviated any need for an emergency special session this week.

I was only surprised that no one publicly questioned the propriety of the president’s threatened intrusion into Congress’s scheduling prerogatives. Unmentioned in the press was the fact that even when Congress is in recess today, it is still considered to be in legislative session. That’s because it convenes every three days for what are called, “pro forma” sessions during which no legislative business is conducted. Secondly, should the need arise, the Speaker of the House and majority leader of the Senate are empowered by special rules adopted before each break to reconvene their respective chambers for legislative business.

Even at the end of a Congress the pro forma day sessions are maintained until noon at the beginning of the next Congress, leaving no space for presidentially inspired unilateral moves. Put another way, the president’s special convening authority is all but obsolete.

The main reason pro forma sessions were concocted was to prevent the president from making “recess appointments” to high-ranking administration posts when the Senate is not present to confirm nominations. According to Article II, section 2 of the Constitution, the president may fill vacancies during a recess of the Senate, and those appointees can serve until the end of the next session.

Today, a recess is not really a recess because both houses are still technically engaged in a legislative session, even without considering legislation.

The history of presidents invoking their constitutional prerogative to recall one or both houses for an “extraordinary session” is sketchy. The most dramatic instance occurred in 1948 when President Harry S. Truman delivered a stemwinding acceptance speech on July 15 as the presidential nominee at the Democratic national convention in Philadelphia. Vice President Truman became president when President Franklin Delano Roosevel died on April 12, 1945, at the outset of his fourth term.

In his 1948 acceptance speech, Truman imposed on Congress an unusual mandate to meet, beginning on July 26, 1948, for two weeks to act on his top three priorities: civil rights, extending Social Security, and national health care. He dubbed his call to action his “Turnip Day” speech since July 26 was the day, back in his home state of Missouri, when farmers planted their turnip crop.

Despite the sweltering heat in Philadelphia, the lack of air-conditioning in the convention hall, and the late hour of his address (1:45 a.m.), Truman’s speech brought the delegates to life and to their feet. “Give ‘em hell, Harry,” became his campaign’s marching mantra.

Although Truman succeeded in calling the “do nothing Congress” back for a lame-duck session, he did not succeed in passing any of his priority bills. Instead, the Republican-controlled Congress used the opportunity to pass two of its bills on inflation and housing, and then adjourned.

More importantly for Democrats, though, Truman stoked new life into his party, overcame his underdog status to win the presidency, and propelled his party into broad majority control of both chambers of Congress after holding sparse minorities in the previous Congress.

For Trump to consider calling a special session in the middle of what is still an active legislative session, on the cusp of volatile midterm elections, would indeed be an extraordinary political gambit. At least that possibility has sufficiently embarrassed congressional leaders on both sides to abandon their frivolous amendment ping-pong matches and agree to the Senate’s last unanimous volley as an acceptable compromise. Perhaps Trump could even top Truman’s “Turnip Day Speech” with a mail-in “Orange Day Address” honoring his adopted state of Florida.

Don Wolfensberger is a 28-year congressional staff veteran culminating as chief of staff of the House Rules Committee in 1995. He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).

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