The Congressional Adjournment Clause

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

—James Burnham & Louis J. Capozzi III

Introduction

Under the Twentieth Amendment, Congress must convene each year on January 3 or another date “set by law.” (See Essay No. 207.) That date marks the beginning of Congress’s annual session. From that point, “during the Session of Congress,” the Congressional Adjournment Clause governs the ability of each house to “adjourn,” which the Founders understood to mean “decisions to end [a] session and to take breaks during a session.”¹ The clause gives each house the unilateral ability to adjourn for three days or less. In that respect, the clause is another example of the Constitution’s empowerment of each house of Congress to manage its internal affairs, just as each can “determine the Rules of its Proceedings.”² (See Essay No. 26.) Under the rules that Congress has established, a simple majority is required in each house on a motion to adjourn. Notably, the Senate’s rules have long treated a motion to adjourn as one that cannot be filibustered,³ and the Constitution expressly exempts adjournment votes from the President’s veto power.⁴ (See Essay No. 38.)

The Constitutional Convention

The clause places two limits on the unilateral adjournment power: One house cannot adjourn (1) to a different location or (2) for more than three days without the other house’s consent. Both limitations reflect the Framers’ fear of potential legislative mischief.

First, during the Philadelphia Convention, the potential for one or both houses of Congress to obstruct the operation of the government by convening away from the seat of government sparked some anxiety.⁵ A draft from the Committee of Detail thus prohibited a single house from adjourning to meet away from the seat of government without the other house’s consent.⁶ Some delegates wanted to tie Congress’s hands even further. When the committee’s proposal was debated by the entire Convention, Rufus King of Massachusetts proposed that Congress should have to pass a law—thus involving the President—to meet away from the seat of government.⁷ However, Elbridge Gerry, also of Massachusetts, thought it would be improper for the President to interfere with the choice of where the two houses would meet.⁸

During further debate, some delegates expressed concern that King’s proposal could result in Congress being forced to meet in an improper location. Ultimately, the Committee of Detail’s language was left in place.⁹ With minor stylistic edits by the Committee of Style, that language remained in the final Constitution.¹⁰

Second, the Framers worried that a majority in one house could try to prevent the legislature from functioning by adjourning and refusing to convene for an extended period. James Madison of Virginia explained at the Virginia convention that “it would be very exceptional to allow [either house] to adjourn without the consent of the other house, at any season whatsoever, without any regard to the situation of public exigencies.”¹¹ Several state constitutions dealt with that concern by limiting the ability of a single house of the state legislature to adjourn without the other’s consent. For example, Massachusetts, New Hampshire, and New York permitted unilateral adjournment only for two days or less.¹²

Within the Committee of Detail, Edmund Randolph’s draft would have given each house the ability to adjourn unilaterally for seven days or less,¹³ but John Rutledge edited the draft to impose a three-day limit. That revised limit made it into the committee draft presented to the entire Convention and the finalized Constitution with no recorded debate.¹⁴

Ratification Debates

The Congressional Adjournment Clause generated relatively little controversy during the ratification debates. Nevertheless, some opponents of the Constitution feared that the Senate could manipulate the clause to prevent members of the House of Representatives from returning home.

At the Virginia convention, George Mason warned that the clause would give the Senate the “power of worrying the house of representatives into a compliance with any measure.”¹⁵ Specifically, the Senate could “stop[] the other house from adjourning.” While the Senators would “feel no inconvenience from long sessions,” the Representatives would be “on a different ground, from their shorter continuance in office.” James Monroe made a similar objection.¹⁶

Mason’s and Monroe’s concerns reflected the assumption that serving in the House of Representatives was a part-time job and that its members would be home for substantial parts of the year.¹⁷ As mentioned above, however, Madison addressed this concern by arguing that the clause was needed to ensure that Congress could function.¹⁸

Historical Practice: Time of Adjournment

The Framers recognized that the two houses of Congress could disagree on adjournment. In such cases, Article II, Section 3, Clause 1 vests the President with authority to “adjourn [the houses of Congress] to such Time as he shall think proper.” (See Essay No. 113.) Perhaps somewhat surprisingly, Congress has never failed to agree on adjournment, and the President has thus not yet had the opportunity to exercise his power to adjourn Congress.

Congress’s agreement on adjournment has persisted despite marked evolutions in its annual schedule. In Federalist No. 84, Hamilton predicted that the House of Representatives would be in session only for “a fourth” of the year and the Senate for “a third, or perhaps a half” of the year. Until the Civil War, Congress met for three to six months a year.¹⁹ Congress would take a lengthy intersession recess—that is, a recess between sessions—in the latter half of the year.²⁰ Congress took relatively few recesses in the middle of sessions.²¹ These short breaks were known as intrasession recesses.²² That general pattern continued in the latter half of the nineteenth century, except that Congress generally scheduled an intrasession recess of ten to fourteen days around Christmas.²³ In the twentieth century, Congress began to take a much shorter intersession recess along with roughly six intrasession recesses per year.²⁴

The risk of disagreement about adjournment has decreased in recent years because Congress now typically remains in session year-round with only brief intrasession recesses of under three days and effectively no intersession recess. As the Congressional Research Service explains, “to avoid the need for a concurrent resolution” adjourning Congress under the clause, either chamber may hold pro forma sessions “at least once every three days.”²⁵ The House and Senate rarely conduct legislative business during these pro forma sessions, though each is constitutionally capable of doing so by unanimous consent.²⁶

Historical Practice: Location of Adjournment

It is hard to imagine Congress voting to meet away from the seat of government today, but this prerogative was important during the First Congress. In 1789 and 1790, Congress fiercely debated the location of the nation’s capital.²⁷ Seeking to boost their state’s chances, Pennsylvania’s congressional delegation planned to adjourn Congress from New York to Philadelphia, believing the legislators would never want to leave once they moved to Philadelphia.²⁸ The House agreed to the adjournment, but Vice President John Adams cast three tie-breaking votes against the move in the Senate.²⁹ (See Essay No. 18.) Ultimately, rather than relying on adjournment, Congress passed a law designating Philadelphia as the temporary capital and a territory along the Potomac River as the permanent seat of government.³⁰ (See Essay No. 64.)

Judicial Precedent

The Congressional Adjournment Clause has sparked almost no litigation, and few judicial decisions have addressed it. NLRB v. Noel Canning (2014) discussed the clause when addressing the scope of the President’s power to “fill up all Vacancies that may happen during the Recess of the Senate.”³¹ (See Essay No. 109.) The Court considered how long the Senate must be out of session for a “Recess of the Senate” to occur. The majority drew from the Congressional Adjournments Clause to hold that a break of three days or less is never a “Recess of the Senate” and a break of ten days or less is presumptively not a recess.³²

The Court also held that a legislative house is “in session” whenever it convenes a pro forma session.³³ The Senate can thus disable the President from making recess appointments by simply convening pro forma sessions every three days throughout extended breaks, ensuring that no “Recess of the Senate” arises.³⁴

Open Questions

If the Senate convenes to handle only business in which the House has no constitutional role, such as confirming presidential nominees, would the Senate need the House’s consent to adjourn for more than three days? At least one scholar suggests that it would not.³⁵ And indeed, Hamilton in Federalist No. 84 predicted that the Senate would be in session longer each year than the House. On the other hand, at several points, the Committee of Detail’s draft of the Congressional Adjournments Clause included an exception to the three-day limit for the Senate when it performed such duties.³⁶ This exception was subsequently struck without recorded debate.³⁷ One potential explanation is that the Committee of Detail originally proposed giving the Senate the unilateral power to make treaties, appoint ambassadors and Supreme Court Justices, and resolve inter-state land disputes.³⁸ If the Senate needed to shoulder these additional unilateral duties, then giving it greater discretion with respect to its schedule would have made even more sense.

The clause authorizes Congress to adjourn to a location away from the capital, but it presumably would want to do so only if there were a severe emergency affecting Washington, D.C. If that circumstance arose while Congress was in recess and its members were scattered across the country, could it meet elsewhere without first reconvening in Washington so that it could vote to adjourn to another location? This situation arose in 1793. An outbreak of yellow fever beset the nation’s temporary capital, Philadelphia. Congress was in recess but due to return soon. President Washington questioned whether he could convene Congress in Trenton, New Jersey, where he had moved some executive departments. Secretary of State Thomas Jefferson advised that the President had no power to convene Congress away from the seat of government.³⁹ Congress ultimately reconvened in Philadelphia, when the outbreak was less severe.

1. Michael Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1551 n.198, 1557 (2005). ↩︎
2. Art. I, § 5, cl. 2. ↩︎
3. Standing Rules of the Senate 15 (2013) (R. XXII(1)), https://perma.cc/QS6L-77RS; Samuel Issacharoff & Trevor Morrison, Constitution by Convention, 108 Cal. L. Rev. 1913, 1939 n.121 (2020). ↩︎
4. Art. I, § 7, cl. 3. ↩︎
5. 2 Farrand’s 261. ↩︎
6. Id. at 140, 180. ↩︎
7. Id. at 261. ↩︎
8. Id. at 262. ↩︎
9. Id. ↩︎
10. Id. at 262, 568, 593. ↩︎
11. 3 Farrand’s 312. ↩︎
12. Mass. Const. of 1780, ch. 1, arts. VI, VIII; N.H. Const. of 1776; N.Y. Const. of 1777, art. XIV. ↩︎
13. 2 Farrand’s 140, 142. ↩︎
14. Id. at 156, 180. ↩︎
15. 2 The Founders’ Constitution 293–94 (Phillip B. Lerner & Ralph Lerner eds., 1987). ↩︎
16. 3 Farrand’s 312. ↩︎
17. Federalist No. 84 (Hamilton). ↩︎
18. 3 Farrand’s 312. ↩︎
19. Rappaport, supra at 1500–01. ↩︎
20. Id. ↩︎
21. Id. ↩︎
22. Id. ↩︎
23. Id. at 1501. ↩︎
24. Id. ↩︎
25. Valerie Heitshusen, Cong. Rsrch. Serv., R42977, Sessions, Adjournments, and Recesses of Congress 13 (2016). ↩︎
26. Id. at 19. ↩︎
27. Fergus M. Bordewich, The First Congress 144–45 (2016). ↩︎
28. Id. at 149. ↩︎
29. Id. at 233. ↩︎
30. Id. at 247–48. ↩︎
31. 573 U.S. 513 (2014). ↩︎
32. Id. at 538. ↩︎
33. Id. at 550. ↩︎
34. Id. at 614 (Scalia, J., concurring in the judgment). ↩︎
35. David J. Arkush, The Original Meaning of Recess, 17 U. Pa. J. Con. L. 161, 174 n.42 (2015). ↩︎
36. 2 Farrand’s 142, 156, 180. ↩︎
37. Id. at 262. ↩︎
38. Id. at 183–85. ↩︎
39. Samantha Snyder, A Philadelphia Story, Mt. Vernon Magazine (Fall 2020), https://perma.cc/2SN7-3NNN. ↩︎