The Volokh Conspiracy

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Noel Canning Redux: Justices Breyer and Scalia wrote that the President could use the adjournment power to block Senate "intransigence" (Updated)

No President has ever adjourned Congress before. Yet at least.


Today, President Trump said he could adjourn Congress as a means to make recess appointments.

"If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers of Congress."

He also referred to pro forma sessions as "phony" and a "scam." I suspect President Obama would agree with him on this point at least.

Article II, Section 3 provides:

[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper

No President has ever used the adjournment power–certainly not to make recess appointments. But this idea is not novel. Justice Scalia flagged it in NLRB v. Noel Canning (2014).

In that case, the Obama Administration asked the Supreme Court to view the recess-appointment power as a "safety valve" against Senatorial "intransigence." The majority opinion by Justice Breyer rejected that position. Breyer explained that the President has other trump cards at his disposal: namely, the adjournment power. He wrote:

Finally, the Solicitor General warns that our holding may "`disrup[t] the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.'" Brief for Petitioner 64 (quoting Morrison v. Olson(1988)). We do not see, however, how our holding could significantly alter the constitutional balance. Most appointments are not controversial and do not produce friction between the branches. Where political controversy is serious, the Senate unquestionably has other methods of preventing recess appointments. As the Solicitor General concedes, the Senate could preclude the President from making recess appointments by holding a series of twice-a-week ordinary (not pro forma) sessions. And the nature of the business conducted at those ordinary sessions — whether, for example, Senators must vote on nominations, or may return to their home States to meet with their constituents — is a matter for the Senate to decide. The Constitution also gives the President (if he has enough allies in Congress) a way to force a recess. Art. II, § 3 ("[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper"). Moreover, the President and Senators engage with each other in many different ways and have a variety of methods of encouraging each other to accept their points of view.

Let's use an example. If the Republican-controlled Senate wants to adjourn right now, and the Democratic-controlled House does not want to adjourn right now, there would be a "disagreement with Respect to the Time of Adjournment." Here, the President's "allies in Congress" (Senate Republicans) could set the stage for him to adjourn Congress. And once the Senate is adjourned for more than ten days, per Noel Canning, the recess appointment power is activated.

Justice Scalia concurred, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. They made a very similar position: the President's friends in Congress could help trigger an adjournment:

The majority replaces the Constitution's text with a new set of judge-made rules to govern recess appointments. Henceforth, the Senate can avoid triggering the President's now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted. Ante, at 2555-2556. How this new regime will work in practice remains to be seen. Perhaps it will reduce the prevalence of recess appointments. But perhaps not: Members of the President's party in Congress may be able to prevent the Senate from holding pro forma sessions with the necessary frequency, and if the House and Senate disagree, the President may be able to adjourn both "to such Time as he shall think proper." U.S. Const., Art. II, § 3. In any event, the limitation upon the President's appointment power is there not for the benefit of the Senate, but for the protection of the people; it should not be dependent on Senate action for its existence.

All 9 Justices seemed to agree that the adjournment power could be used to facilitate recess appointments.

Update: My original post attributed a passage to Justice Scalia's concurrence that actually appeared in Justice Breyer's majority opinion. I've revised the post to include Breyer's and Scalia's arguments. They largely agree on this point.