The Congressional Assembly Clause

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

—Michael Stern

Introduction

In Britain, the monarch had broad powers to convene and adjourn Parliament. The U.S. Constitution gave Congress the primary role in convening and adjourning itself; the President’s role is extremely limited. The Congressional Assembly Clause requires Congress to assemble at least once a year on the first Monday in December or on another date that Congress can set by statute. The Congressional Adjournment Clause allows each house unilaterally to adjourn for three days; a longer adjournment requires both House and Senate consent. (See Essay No. 29.) The Presidential Convening Clause allows the President to convene either or both houses of Congress “on extraordinary Occasions.” (See Essay No. 112.) Under the Presidential Adjournment Clause, if the House and Senate disagree about the “Time of Adjournment,” the President “may adjourn them to such Time as he shall think proper.” (See Essay No. 113.) Over time, a regular schedule emerged for odd-numbered years, and its timing created several problems that would be addressed by the Twentieth Amendment, which was ratified in 1933. (See Essay No. 207.)

History Before 1787

Sir William Blackstone explained that Parliament could not be “convened by its own authority.”¹ Rather, the power to convene Parliament was a “royal prerogative” of the Crown, and “this prerogative [was] founded upon very good reason.” Blackstone observed that it would be “impossible to conceive that all the members, and each of the houses, would agree unanimously upon the proper time and place of meeting.” If only some of the members were present, Blackstone asked, “who shall determine which is really the legislative body, the part assembled, or that which stays away?” To avoid that problem, the king, a “single person, whose will may be uniform and steady” and is “superior to both houses in dignity,” could call together the assembly “at a determinate time and place.” Critically, the monarch was “the only branch of the legislature that has a separate existence, and is capable of performing any act at a time when no parliament is in being.”

Colonial governors enjoyed comparable powers with regard to convening and dismissing their elected assemblies. In Maryland, for example, the colonial governor “could summon, dissolve, adjourn, or prorogue the Assembly.”² Early state constitutions, on the other hand, sharply reduced or eliminated executive control of the legislative schedule. Typically, they required that the legislature assemble at least once a year and a specified date on which the meeting was to occur.³

The Articles of Confederation did not include any clause that provided when or how the unicameral legislature would convene.

The Constitutional Convention

During the Constitutional Convention, the delegates made three decisions regarding Congress’s assembly: the default date on which Congress would meet, whether Congress could change that date, and how often Congress must assemble. The Committee of Detail’s report proposed that the “Legislature shall meet on the first Monday in December in every year.”⁴ By fixing a date in the Constitution, this proposal avoided the uncertainty that Blackstone described in the English system: In the case of disagreement, there was a default rule.

However, there was some debate about what the starting date should be. On August 7, Gouverneur Morris of Pennsylvania argued for a May date.⁵ This schedule would allow the United States time to respond to new measures from European countries, which were typically adopted during the winter. James Madison of Virginia also preferred May, as travelling in December would be during “the most inconvenient seasons of the year.”⁶ Oliver Ellsworth of Connecticut thought meeting in the summer would “interfere . . . with agriculture.”⁷ Ultimately, the Convention stuck with the December date by a vote of eight to two.⁸

The Convention also gave Congress the power to set a different assembly date. Madison proposed that the date could “be fixed or varied by law.”⁹ The Convention later settled on this language: “[S]uch meeting shall be on the first Monday in December unless a different day shall be appointed by law.”¹⁰ The Committee of Style altered the language slightly: “[S]uch meeting shall be on the first Monday in December, unless they shall by law appoint a different day.”¹¹ Because “by law” means by statute, the President, armed with his veto, had some role in setting the date on which Congress would assemble.¹²

The final issue concerned whether Congress actually had to meet at any regular interval. Rufus King of Massachusetts suggested that yearly meetings were not necessary because there would not be enough legislative business for Congress to deal with annually.¹³ Nathaniel Gorham, also of Massachusetts, countered that annual meetings were necessary as a “check on the Executive department.”¹⁴ He argued that the time should be fixed both to prevent disputes from arising within the legislature and to allow the states to adjust their elections to correspond with the fixed date. The Convention ultimately proposed that “[t]he Legislature shall meet at least once in every year.”¹⁵ The Committee of Style changed “meet” to “assemble”: “The Congress shall assemble at least once in every Year.”¹⁶

Like the similar provisions of early state constitutions, the Congressional Assembly Clause protected the legislative schedule from executive control and interference. In addition, as Justice Joseph Story would observe, it placed the requirement for annual legislative sessions “beyond the power of faction and of party, of power and of corruption.”¹⁷

The Early Congresses

The First Congress did not initially assemble on the first Monday in December as provided by the Congressional Assembly Clause. Instead, following the new Constitution’s formal ratification on June 21, 1788, the Confederation Congress resolved “that the first Wednesday in March next be the time and the present seat of Congress the place for commencing proceedings under the said constitution.”¹⁸ Accordingly, the First Congress assembled on March 4, 1789. The House and Senate wished to proceed immediately to count the electoral votes, but they did not do so because a quorum was absent; it was not until April 6 that both houses had a quorum and the electoral votes were counted.¹⁹ (See Essay No. 25.) George Washington took his inaugural oath as President on April 30, 1789.²⁰ (See Essay No. 101.)

Congress continued to meet until September 29 and, before adjourning, enacted a law providing that its next meeting would be on the first Monday in January 1790.²¹ The second session of the First Congress accordingly began on January 4, 1790; it adjourned on August 12.²² There was some discussion about whether the Constitution required an additional meeting in 1790.²³ Congress decided to meet again on the constitutional assembly date of December 6 without enacting an additional law.²⁴ The third session of the First Congress began on December 6, 1790, and adjourned on March 3, 1791.

Before adjourning its third and final session, the First Congress enacted a law providing that the first annual meeting of the new Congress would be on the fourth Monday of October 1791.²⁵ Despite this precedent and others, however, there are those who question whether one Congress can change the constitutional assembly date for a future Congress.²⁶

Pursuant to the aforementioned law, the Second Congress assembled on October 24, 1791. It continued to meet through the constitutional assembly date until May 8, 1792, when it adjourned and ended its first session. Other early Congresses also followed this practice that the constitutional assembly date would not interrupt or otherwise affect a session that had commenced earlier (whether by law or by presidential proclamation).²⁷ However, later precedent holds that a preexisting Congress expires by operation of law and a new session begins on the constitutional assembly date.²⁸ This interpretation is consistent with Thomas Jefferson’s Manual of Parliamentary Practice, which explains that a meeting of Congress on the constitutional assembly date “must begin a new session.”²⁹ On the other hand, one modern scholar argues that Congress is not required to begin a new session every year and could hold just one session over a two-year period if it chose to do so.³⁰

The Third Congress began its first session on the constitutional assembly date of December 2, 1793.

The Timing of New Congresses and New Sessions

The resolution of the Confederation Congress that established March 4, 1789, as the date for “commencing proceedings” under the Constitution had some unintended and unfortunate consequences. Although the Constitution did not specify when the terms of elected officials would begin, it did specify the length of those terms: four years for President and Vice President, six years for Senators, and two years for Representatives. Because the Confederation Congress’s action meant that these terms began on March 4, 1789, it followed that they would all end on a future March 3 and that the next terms would begin the following day.

The combination of the March 4 start of congressional and presidential terms and the constitutional assembly date of the first Monday in December created an odd congressional schedule.³¹ Congressional elections would be held in every even-numbered year. In every odd-numbered year, there were three important dates: The old Congress would conclude on March 3; the new Congress would begin on March 4, and the President would take his inaugural oath; and, absent a statutory change, the first session of the new Congress would begin on the first Monday in December.

This timing led to three potential problems. First, it created the possibility of a lame-duck Congress. For example, the Sixth Congress was elected in 1798 with a Federalist Party majority. By the time its second session began in December 1800, it was clear that Thomas Jefferson, a Democratic-Republican, had won the presidency. Jefferson, however, would not take his oath until March 4, and the Democratic-Republican party would take control of the new Congress on that same day. Between December 3, 1800, and March 3, 1801, the Federalist Congress would enact sweeping legislative programs. One of these bills was the Judiciary Act of 1801, also known as the Midnight Judges Act,³² which led to Marbury v. Madison (1803).³³ (See Essay No. 134.)

Second, more than a year could elapse between the congressional election and the start of the new session. In the thirteen-month gap between 1860 and 1861, the Civil War broke out. In 1930, congressional elections were held on November 4 and yielded a slight majority for the Republican party. However, the 72nd Congress would not begin its first session until December 7, 1931—more than thirteen months later. During that period, fourteen members-elect died, including former Speaker of the House Nicholas Longworth, a Republican from Ohio. Special elections were held to fill the vacancies. As a result, when the 72nd Congress finally assembled in December 1931, the Democratic party had a slight majority.³⁴

Third, with this schedule, a new President would be in office for nearly nine months until the new Congress begins its first session. However, the President does have the power “on extraordinary occasions” to “convene both Houses or either of them.” For example, on March 4, 1933, President Franklin Roosevelt convened Congress in a special session to consider urgent legislative components of the New Deal.

Each of these three problems would be addressed by the Twentieth Amendment, which was ratified in 1933. Under the amendment, the new Congress would begin and would meet for its first session on January 3 of every odd-numbered year, and the President would take the inaugural oath of office on January 20 of every fourth year. As a result, the lame-duck Congress would stretch only from (about) November until January, and when the new President entered office, the new Congress would already be in session. Moreover, the new Congress rather than the old Congress would preside over the joint session of Congress that formally elects the President.

Open Questions

• Are there limits to the authority of one Congress to change the assembly dates for future Congresses? For example, could Congress pass a law saying that all future Congresses shall assemble on May 1?
• What happens if the House or Senate lacks a quorum on the constitutional assembly date of a year when a new President is to be inaugurated? Would the absence of a quorum in either house or the inability of the House to organize for any reason preclude the counting of electoral votes and thereby prevent the inauguration of a new President on January 20?
• Is Congress constitutionally required to begin a new session on the constitutional assembly date? Could it instead choose to hold a single session that lasted for more than a year? Could a single session last for two years or even longer?

1. 1 Blackstone 150. ↩︎
2. Paul H. Giddens, Governor Horatio Sharpe and His Maryland Government, 32 Md. Hist. Mag. 156, 160 (1937). ↩︎
3. Ga. Const. of 1777, art. II; Md. Const. of 1776, art. XXIII; N.J. Const. of 1776, art. III. ↩︎
4. 2 Farrand’s 177. ↩︎
5. Id. at 199. ↩︎
6. Id. ↩︎
7. Id. at 200. ↩︎
8. Id. ↩︎
9. Id. at 197. ↩︎
10. Id. at 565. ↩︎
11. Id. at 592. ↩︎
12. William Montgomery Meigs, The Growth of the Constitution in the Federal Convention of 1787, at 337 (1900). ↩︎
13. 2 Farrand’s 198. ↩︎
14. Id. ↩︎
15. Id. at 565. ↩︎
16. Id. at 592. ↩︎
17. 1 Story’s Commentaries § 829. ↩︎
18. 34 J. Cont. Cong. 523 (Sept. 13, 1788). ↩︎
19. S. Jour., 1st Cong., 1st Sess. 5–8 (Mar. 4–Apr. 6, 1789). ↩︎
20. Id. at 18. ↩︎
21. 1 Hinds’ Precedents § 5. ↩︎
22. Id. ↩︎
23. Id. ↩︎
24. Id. ↩︎
25. Id. at § 6. ↩︎
26. 1 Precedents (Wickham), ch. 1, § 2.1. ↩︎
27. 1 Hinds’ Precedents §§ 6–10. ↩︎
28. 1 Deschler’s Precedents ch. 1, § 3; 2 Hinds’ Precedents § 1160. ↩︎
29. House Rules and Manual § 590. ↩︎
30. Saikrishna Bangalore Prakash, Of Synchronicity and Supreme Law, 132 Harv. L. Rev. 1220, 1264 (2019). ↩︎
31. Edward J. Larson, The Constitutionality of Lame-Duck Lawmaking: The Text, History, Intent and Original Meaning of the Twentieth Amendment, 2 Utah L. Rev. 707, 716–17 (2012). ↩︎
32. 2 Stat. 89. ↩︎
33. 5 U.S. (1 Cranch) 137 (1803). ↩︎
34. Andrew Glass, The 72nd Congress Convenes, Dec. 7, 1931, Politico (Dec. 7, 2009), https://perma.cc/RH3Y-VEJP. ↩︎