The Volokh Conspiracy
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Jurisprudence on the Adjournment Power, Old and New
Last month, Washington was in a tizzy about whether President Trump could use the adjournment power as a means to create a recess, and then make recess appointments for his cabinet member. That frenzy seems to have died down, but scholars continue to investigate the issue.
There are two primary legal questions to consider about the adjournment clause. First, can the President invoke the clause to adjourn any session of Congress, or only those extraordinary sessions that he may convene? Second, does the adjournment power empower the President to decide when to adjourn Congress, or does it merely empower him to decide the duration of an adjournment?
I'd like to flag two recent entries in the debate. First, Alan Erbsen wrote a draft article titled "Constitutional Limits on the President's Authority to Adjourn Congress." Second, Jason Willick and Phillip Huff publishded a detailed column in the Washington Post, titled How a long-ago fight over a dormant constitutional weapon echoes today.
Erbsen contends that the adjournment power is limited to extraordinary sessions:
First, the Constitution tethers the Disagreement Clause to the Convening Clause. The President may adjourn Congress only if the President convened at least one of the houses in an extraordinary session. If both houses convened on their own in a regular session, the President lacks power to adjourn them.
To his credit, Erbsen cites Section 1557 of Justice Story's Commentaries, which suggests the power is not so limited:
§ 1557. The power to adjourn congress in cases of disagreement is equally indispensable; since it is the only peaceable way of terminating a controversy, which can lead to nothing but distraction in the public councils.
Erbsen also contends that the President can only determine the date that Congress can adjourn till, and even then, Congress can choose to reconvene on its own power:
Third, even if the President can force the Senate to adjourn, the Senate can reconvene to protect its role in the appointments process. The President can authorize the Senate to remain adjourned until a specified date, but cannot suppress the Senate's inherent authority to reconvene on an earlier date.
Mike Stern made a similar point on the Lawfare Podcast (starting at 26:21). Stern argues that this power is only triggered when the House and Senate both wish to adjourn, but they do not agree how long that adjournment should be. And, the President can mediate that disagreement to decide how long the adjournment should be. He argues the power is not triggered when the House wants to adjourn but the Senate does not want to adjourn.
Erbsen also cites a contrary source, which I am embarrassed that I had forgotten about: Justice John Marshall Harlan's lecture notes, which I transcribed with Brian Frye and Michael McCloskey. Harlan seems to be saying the President has the broader power to adjourn Congress, and not just to set the date on which the adjournment ends.
"The Senate wants to adjourn to one period. The House says, 'No, we won't agree to that. We propose to adjourn to another day.' Well, the Senate won't agree to that. And here is a hung jury, to use a popular phrase. And the time of the country, and the money of the country, is not to be wasted in fruitless endeavor of these two Houses to agree as to the time to which they shall adjourn. Now, in that state of case the President may interfere and say, 'I adjourn you both to a certain day in the future.' That is lawful."
Harlan and Story did not seem to limit the power to extraordinary sessions.
Alan has a rich and detailed history of these provisions, which I would commend to your attention.
Now, let's turn to Willick and Huff's article in the Post. They reveal that debates over these two questions are not new. Indeed, both of these issues were debated in 1834--one year after Story's Commentaries were published. At the time, President Andrew Jackson considered whether to adjourn the Senate to prevent the re-authorization of the Second Bank of the United States. Willick and Huff describe this episode as "largely forgotten." They're right. I hadn't heard about it before, and I don't recall it being mentioned in last month's recess kerfuffle. The authors cite a wealth of primary sources.
First, was the adjournment power limited to extraordinary sessions? The Globe, a pro-Jackson newspaper, argued that the adjournment power was not limited to extraordinary sessions:
The Globe, a paper close to Jackson's administration, published a forceful defense of presidential adjournment power two days after Adams's speech. It accused senators of threatening to stay in session until the Bank of the United States — which Jackson had vowed to destroy — was rechartered. Jackson could preempt this supposed senatorial extortion: The Constitution, the Globe insisted, empowers "the Executive, whenever the two Houses, on any occasion, cannot agree as to the time of their adjournment, to interpose and untie for them the Gordian knot."
The Globe also cited the drafting history of the Constitution. This citation is significant, because Madison's records of the convention were not published until 1840, after Madison's death. It is not clear which sources the Globe was relying on. Perhaps they simply used the journal of the convention, which was available shortly after ratification.
The pro-Jackson editorialists even appealed to the Constitution's drafting history to support their point. They noted that in an early draft of the Constitution, the president's power to call special sessions and his power to adjourn Congress "were written separately, in distinct sentences." It was only in a later draft that they were "condensed into one sentence." That suggested that the president's adjournment prerogative existed independently of his power to convene Congress, the Globe argued. The Framers ultimately linked the two powers together "from mere taste as to punctuation and euphony in the structure of the section."
I recently had the occasion to review this drafting history of the convening and adjourning clause. It is true that the provisions were originally drafted separately, but they were tethered together early in the convention by the Committee of Detail. This was not some sort of "stylistic" change stuck in by Gouverneur Morris at the end of the convention. Erbsen provides the cites to Farrand's on Pages 25-26 of his draft.
Willick and Huff cite another newspaper, which rejects the Globe's reading of the drafting history:
Another newspaper commentary put a different spin on those revisions, surmising that the merging of the two clauses was intended "not for euphony, but for fundamental law." Perhaps the drafters of the Constitution combined the two prerogatives into one sentence deliberately to link the president's adjournment power to special sessions. Either way, they left an ambiguity that enabled the clause to be read both ways even within living memory of the Constitution's ratification.
Two years later, in 1836, President Jackson seemed to endorse this reading in a veto message of unrelated legislation. Jackson referred to the adjournment power as a "contingent power of the Executive which in anticipated cases of disagreement is vested in him." Jackson did not view this power as limited to extraordinary sessions.
The Whigs, who were Jackson's political opponents, argued that the power was limited to extraordinary sessions. Their argument was premised on the text of Article II, Section 3. Willick and Huff cite a May 1834 article in the Richmond Whig & Public Advertiser:
The adjournment prerogative, he observed, is triggered "'in case of disagreement between them' — between whom? The two Houses — what two Houses? The two Houses extraordinarily assembled [by the President]— the only two Houses alluded to in the section."
The authors cite another source:
As an article in the National Gazette and Literary Register observed, "no great injury can result from permitting the President" to dismiss a Congress he himself convened. But allowing a president to combine with one house of Congress to suppress the other in a regular session would undermine the legislative branch's ability to check the executive. The Gazette piece claimed that if the president's power applied even to ordinary sessions of Congress without limitation, "it would virtually establish a Dictatorship."
In 1836, Maryland Senator Robert Henry Goldsborough responded to Jackson's veto. Goldsborough cited the "grammatical and legal construction" of the Constitution. Article II, Section 3, enumerates the President's convening power "in the same breath" as the adjourning power. This structure, he explained, "evidently confin[es] this power to the convention of both Houses 'on extraordinary occasions." Goldsborough suggested that the Framers were "more likely to anticipate that its use would be necessary" when the President had convened the session in the first place.
In 1834, the Democrats and Whigs also debated what exactly the adjournment power allowed the President to do:
The second limit on Jackson's power that the Whigs proposed was more subtle. They argued that even if the prerogative extends beyond special sessions of Congress, it does not allow the president to cut a regular session short. Instead, it only allows him to settle a disagreement about when Congress should reconvene.
This reading is also sensible, but it takes some parsing to see why. The phrase "time of adjournment," one writer observed in the New-York American, is "evidently ambiguous" because it could refer either to when the adjournment starts or to how long it lasts. Which meaning did it have in the Constitution?
The New-York American did what textualists often do today: cite a dictionary:
An article in the same newspaper the following week argued that this forward-looking interpretation was truer to the actual meaning of "adjourn":
The word, as its derivation shows, refers to the time of again convening. It comes from the two French words à journée, to a day. When a body of men separate to meet at a future day they are said to adjourn, not because they separate, but because they are to meet again on a fixed day… The force, the point, the gist, if I may so, of the word adjourn is the indication of a day of again convening.
Another Whig newspaper gave an example of how that power could be used:
A June 1834 note in the Richmond Whig gave an example. Suppose the House and Senate want to adjourn for the summer. But the Senate wants to reconvene on Oct. 1, while the House wants to reconvene on Nov. 1: "The President then comes in under the authority of the Constitution, and prorogues them to the 15th November or 1st December."
There really is nothing new under the sun. The same argument we are debating today roiled the country nearly two centuries ago.
Finally, Erbsen includes a citation to my 2016 article Gridlock, which I had also forgotten about!
Adjourning the Senate to make recess appointments at the start of a presidential term would also raise concerns about the quality of appointees. The President might claim to be seeking expedited staffing of the executive branch without obstruction by political foes in the Senate.
See Blackman, supra note 11, at 300 (situating the Disagreement Clause within discourse about "gridlock").
At the time, behind the veil of ignorance, I wrote:
Second, vesting the Executive with a near-infinite range of authority to fashion "conditional self-help powers" forgoes actual contingency authority built into the Constitution. If the Congress was unreasonably blocking the President's recess appointments, under his vested Article II powers, he could have adjourned the Senate, forcing them into recess: "in Case of Disagreement between them, with Respect to the Time of Adjournment, [the President] may adjourn [Congress] to such Time as he shall think proper." The Constitution speaks to congressional gridlock — "in Case of Disagreement" — and gives the President a power to work around the Congress that cannot agree to adjourn. Once adjourned, a recess appointment could be made.
I guess I made this argument long before it was cool.
