Congress Faces Funding Impasse for DHS

Currently, Congress is in its second week of a recess lasting about 16 to 17 days for Easter and Passover. Meanwhile, the Department of Homeland Security (DHS) will be effectively shut down for two months, with no apparent resolution in sight.

This has prompted some Republican lawmakers and conservative activists to urge President Donald Trump to convene Congress and secure funding for the DHS.

It’s worth delving into this issue further.

The president can indeed call Congress back under “extraordinary” circumstances, but it’s not a guarantee that legislative action will follow. It’s a bit murky whether Trump has the authority to bring both houses back into session right now.

House Republicans’ Plan for DHS Funding Faces Challenges

Article 2, Section 3 of the Constitution provides that the president can summon both Houses if necessary, especially in cases of disagreement over adjournment. Historically, there have been 45 such special sessions, with 27 led by both chambers. President Washington initiated the first special session in 1791 to address the admission of Vermont as a state. Later, in 1861, President Lincoln called Congress back post-Fort Sumter’s attack.

More recently, in 1948, President Harry Truman famously reconvened Congress during their adjournment to tackle pressing policy issues. This day, referred to amusingly as “Turnip Day,” is when farmers are traditionally thought to plant turnips. Notably, Truman’s push for progress led to a rather underwhelming response from Congress, which passed only two bills that he felt didn’t meet his expectations.

So, the president has the authority to bring Congress back, but this power doesn’t necessarily influence what actually gets done. The criteria for “extraordinary occasions,” as intended by the Founding Fathers, seem rather vague. Back then, it was not uncommon for Congress to leave Washington for long stretches, which is why this recall power exists in times of crisis.

This brings us to the present situation: the prolonged delay in DHS funding is genuinely concerning. Ultimately, the choice to call Congress back rests with the president, but there might be limitations as to when this can happen legally. Despite the urgency surrounding DHS funding, Trump’s efforts to pressure lawmakers back may be met with obstacles.

According to Article 1, Section 5 of the Constitution, each house sets its own rules for proceedings. Since neither the House nor the Senate has officially called for a period of adjournment, Congress could simply hold brief meetings every few days and maintain that they are not truly in session. This scenario complicates the president’s ability to order both chambers to reconvene.

Congress’ Current Status

Some people might argue that Congress isn’t really in session at all, as they only convene for very short periods with minimal attendance. This situation has also been legally challenged in the past, notably during President Obama’s tenure, but the Supreme Court ruled in favor of Congress establishing its norms.

Retired Justice Stephen Breyer noted that a pro forma session counts as a session as long as Congress is capable of conducting business. Therefore, despite public calls for Trump to bring lawmakers back, it appears unlikely due to these legal precedents.

Indeed, last week, there was a moment when the Senate was meant to be in session, but no actual business transpired. Senate Majority Leader John Thune even flagged the Senate’s DHS funding proposal for a second round during what was supposedly a formal session.

It seems some House conservatives hoped the Senate would use its pro forma format to advance the House-approved DHS bill last Monday. However, Congress is currently away, leading many—including lawmakers and the public—to feel frustrated over the lack of action regarding the DHS funding crisis. They are looking to the president to intervene, akin to Truman’s historic move.

Yet, it seems unlikely that a “Turnip Day” style session will materialize this time around. Even if Trump were to try to initiate something similar, it’s probably safe to say that lawmakers wouldn’t be inclined to participate based on the Constitution’s boundaries.