The Presidential Convening Clause

. . . [the President] may, on extraordinary Occasions, convene both Houses, or either of them. . . .

—Seth Barrett Tillman

Introduction

In England, the king had broad powers to set the calendar and legislative agenda for both houses of Parliament. He could convene, prorogue, or dissolve parliament. The Constitution of 1788, like any number of Revolutionary-era state constitutions, substantially broke with the British model. The Framers restricted the Executive’s control over Congress’s calendar and legislative agenda. During the Constitutional Convention, James Wilson of Pennsylvania observed that the President “could not like the Executive Magistrate in England interpose by a prorogation, or dissolution.”¹ And just as the President had no unilateral power to dissolve Congress, he had no power to call new elections for its members. Congress was on a fixed two-year calendar cycle. The first day a new Congress would meet within its two-year term was determined by a statute enacted customarily by the preceding Congress; the last day would be fixed by a concurrent resolution.²

The President has no general power over congressional adjournments. Instead, the President has a limited adjournment power only if the two houses cannot agree on a common time of adjournment. (See Essay No. 113.) To this day, this limited presidential power over adjournment has gone unexercised.³ Moreover, the President, unlike the king, has no unilateral power to control where Congress would reassemble. The Constitution does empower the President to convene either or both houses of Congress “on extraordinary Occasions.”

Parliamentary Practice Before 1787

Under traditional British practice before the American War of Independence, unless otherwise controlled by statute, the king could convene or dissolve (terminate) a Parliament.⁴ The king could also prorogue Parliament.⁵ Prorogation, unlike dissolution, had the more limited effect of terminating legislative business then pending before both houses of Parliament. (Impeachments, as non-legislative business, could carry on notwithstanding a prorogation.) Thus, prorogation would permit the extant Parliament to start a new session during which legislative business could be resumed. All told, the king played an important role in setting the calendar and legislative agenda for both the House of Commons and the House of Lords.

This practice, however, was viewed as controversial and, by some, as less than desirable. Following independence, the North Carolina constitution of 1776 did not grant the governor any express power over the legislative calendar, including the timing of elections, or over each house’s timing of its adjournments, recesses, and dissolution. By contrast, the Massachusetts constitution of 1780 granted the governor, with the “advice of the [Executive] Council,” a discretionary power to “adjourn or prorogue” the legislature for a limited period “[i]n cases of disagreement between the two houses, with regard to the necessity, expediency or time of adjournment, or prorogation.”⁶

The Constitutional Convention

The records from the Constitutional Convention report little about the origin of the Presidential Convening Clause and the thinking behind it. It appears that this provision was first proposed in a Committee of Detail draft in the handwriting of Edmund Randolph of Virginia.⁷ The draft provided that the President could “convene [the] legislature.”⁸ Another Committee of Detail draft granted the President the power to “convene the Legislature on extraordinary Occasions and the power to “prorogue, provided such Prorogation shall not exceed” a limited duration.⁹ A blank space was left in the text, leaving it for the Convention to fix the durational limit of this power. In a subsequent draft in the handwriting of James Wilson of Pennsylvania, the prorogation language was dropped, but there was an emendation in the hand of John Rutledge of South Carolina: “(& in Case of a disagreemt between the 2 Houses with regard to the Time of Adj. he may adjourn them to such Time as he shall think proper.).”¹⁰

The Committee of Detail’s report, which was delivered to the Convention on August 6, did not include an express proroguing power.¹¹ It provided in part that the President “may convene them on extraordinary occasions.”¹² Here the word “them” refers back to the top of the section, which refers to “the Legislature.” The very next sentence, which followed Rutledge’s emendation, includes the Presidential Adjournment Clause: “In case of disagreement between the two Houses, with regard to the time of adjournment, he may adjourn them to such time as he thinks proper.”¹³ As the text was presented, it was not entirely clear whether the President had the power to convene only both houses of Congress (the “Legislature”) or whether he could also convene a single house. On August 13, Wilson argued that the President “here could not like the Executive Magistrate in England interpose [his will against the Legislature] by a prorogation, or dissolution.”¹⁴

On September 8, James McHenry of Maryland proposed language to amend the clause. He “observed that the President had not yet been any where authorized to convene the Senate” and proposed language specifying that the President “may convene both or either of the Houses on extraordinary occasions.”¹⁵ Wilson opposed the motion. He thought it “implied that the senate might be in Session, when the Legislature was not, which he thought improper.”¹⁶ McHenry’s proposal was adopted by a vote of 7 to 4.

The text as referred to the Committee of Style provided that the President “may convene both or either of the Houses on extraordinary occasions, and in case of disagreement between the two Houses, with regard to the time of adjournment, he may adjourn them to such time as he shall think proper.”¹⁷ The Committee of Style modified the text: “[H]e 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.”¹⁸ The Convention adopted this text with no further changes.¹⁹

The Ratification Debates

During ratification, the widely held view was that the President had no power to prorogue congressional proceedings. In Federalist No. 69, Alexander Hamilton observed that “[t]he British monarch may prorogue or even dissolve the Parliament” and that “[t]he governor of New York may also prorogue the legislature of this State for a limited time; a power which, in certain situations, may be employed to very important purposes.” The President, however, has no similar power. He “can only adjourn the national legislature in the single case of disagreement about the time of adjournment.”

The Federalists and Anti-Federalists also debated something of a puzzle. The clause speaks to the President’s convening the two houses (collectively) or either of them. It is not difficult to understand why a President would need to convene both houses when they are out of session. The President might need a declaration of war, and it is both houses (collectively) that enact such declarations by statute. Similarly, in the face of an unexpected calamity, the President may need new organic, legal authorities to deal with the crisis. It also makes sense for the President to need to call the Senate into session. Only the Senate can act on nominations to important offices and on treaties, and during a long recess, an office might become vacant or treaty negotiations might conclude. In both instances, decisive action is needed, and time may be of the essence. But why would the President need authority to convene the House alone? Cato, an Anti-Federalist, observed that “[n]o occasion can exist for calling the assembly without the senate.”²⁰

In Federalist No. 77, Hamilton offered something less than a full-throated defense of the provision. Characterizing Cato’s critique as a mere “cavil,” Hamilton acknowledged that in certain circumstances there would be “good reason” for exclusively convening the Senate, which “has a concurrent power with the Executive in the article of treaties.” In addition, “it might often be necessary to call [the Senate] together . . . when it would be unnecessary and improper to convene the House of Representatives.”

However, Hamilton’s response is not entirely satisfactory. He only repeated what was already quite clear about the President’s convening the Senate alone, but he did not answer Cato’s challenge: Why does this clause grant the President the power to convene the House alone? Your author has offered one view as to the provision’s original public meaning: In certain circumstances, the House alone, acting under the authority of a prior statute, could pass a resolution that would be separately presented to the President, and such a resolution of a single house, taken under prior statutory authority, would have the force of law.²¹ (See Essay No. 38.)

Special Sessions on “Extraordinary Occasions”

There is little scholarly and judicial discussion of what constitutes an “extraordinary occasion.” This would seem to be a political question wholly committed to the President’s discretion. Furthermore, as a historical matter, the clause’s “extraordinary occasion” language does not appear to impose a high bar. Past Presidents have used this power for reasons relating to economic crises, time-sensitive treaties, and war. However, during the antebellum period, outgoing Presidents regularly requested that the Senate should convene for the first day of the successor President’s term. It is not clear that these requests formally invoked the convening power, but it also is not clear by what other authority the Senate could have convened.

On March 1, 1797, President George Washington asked the Senate to convene for the first day of John Adams’s presidential term: “It appearing to me proper that the Senate of the United States should be convened on Saturday, the 4th of March, instant, you are desired to attend in the Chamber of the Senate, on that day, at 10 o’clock in the forenoon, to receive any communications which the President of the United States may then lay before you, touching their interests.” Accordingly, “[i]n conformity with the summons from the President of the United States above recited, the Senate assembled in their Chamber, in the city of Philadelphia, and commenced their thirteenth session.”²² Four years later, President John Adams issued a similar request to the Senate to convene for the first day of President Thomas Jefferson’s first term.²³ In each case, this request facilitated the new President’s making nominations.

Perhaps the most famous invocation of the convening power occurred at the start of the Civil War. President Abraham Lincoln was sworn into office on March 4, 1861. Active hostilities began at Fort Sumter as early as April 12, 1861, but Congress was not due to meet until the first Monday in December. This date was set by Article I, Section 4, Clause 2. Faced with an eight-month recess, Lincoln took unilateral action, sometimes lacking clear statutory authorization. On April 15, 1861, he called Congress into session early to meet on July 4.²⁴ Lincoln sought new statutory authority to arm the government and to fight the war. Specifically, he sought authority to raise 400,000 men and authority to spend $400,000,000.²⁵

Open Questions

• Thomas Jefferson published his influential Manual of Parliamentary Practice for the Use of the Senate of the United States in 1801. He explained that should a President convene Congress while both houses are in session, his doing so terminates that session and starts a new session.²⁶ Would the instantaneous break between the regularly scheduled session and the session convened by the President be an intersession recess or an intrasession recess?²⁷ (See Essay No. 113.) If that break is properly characterized as an intersession recess, did the Framers grant the President a limited, as opposed to a general, prorogation power that may be exercised only on an “extraordinary Occasion[]”? Jefferson’s position has not been universally approved, and the modern practice appears to be that the President’s convening the two houses while they are already in session does not terminate the extant session.²⁸ In those circumstances, there is no intersession break or intrasession break.
• Congress can grant its own officers the power to reconvene both houses, either collectively or separately, when they are not in session. This can be done by concurrent resolution or by statute. Does such a grant of power nullify or trespass upon the President’s power to convene the houses of Congress?²⁹
• The President can “convene” Congress “on extraordinary Occasions.” Is the President’s power to adjourn Congress limited to sessions that were convened as “extraordinary Occasions”? Both Justice Joseph Story and Justice John Marshall Harlan suggested that the answer is “no.”³⁰ In 1834, President Andrew Jackson apparently considered using his adjournment power to adjourn Congress and to prevent the Senate from reauthorizing the Second Bank of the United States.³¹ These questions were debated by the Democrats and Whigs. Some modern scholars have read the Convening Clause to limit the Adjournment Clause.³²

1. 2 Farrand’s 275. ↩︎
2. 1 Hinds’ Precedents § 2. ↩︎
3. S. Doc. No. 117-12, at 794 (2023). ↩︎
4. 1 Blackstone 150, 185–89. ↩︎
5. Jefferson’s Manual 306 (1801), https://perma.cc/J8FF-H8XA. ↩︎
6. Mass. Const. of 1780, pt. II, ch. 2, § I, art. VI. ↩︎
7. 2 Farrand’s 137. ↩︎
8. Id. at 146. ↩︎
9. Id. at 158. ↩︎
10. Id. at 163, 171. ↩︎
11. Id. at 177, 185. ↩︎
12. Id. at 185. ↩︎
13. Id. ↩︎
14. Id. at 275. ↩︎
15. Id. at 546–47, 553. ↩︎
16. Id. at 553. ↩︎
17. Id. at 565, 574. ↩︎
18. Id. at 590, 600. ↩︎
19. Id. at 660. ↩︎
20. Storing 2.6.45. ↩︎
21. Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Reasoned, 83 Tex. L. Rev. 1265 (2005). ↩︎
22. S. Exec. J., 5th Cong., Spec. Sess. 233 (Mar. 4, 1797). ↩︎
23. S. Exec. J., 7th Cong., Spec. Sess. 391 (Mar. 4, 1801). ↩︎
24. Cong. Globe, 37th Cong., 1st Sess. 1 & 2 (1861). ↩︎
25. Id. at app. 1–4; President Lincoln’s Special Session Message (July 4, 1861), https://perma.cc/FZ3D-S84H. ↩︎
26. Jefferson’s Manual, supra at 306. ↩︎
27. Seth Barrett Tillman, Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, 101 Nw. U. L. Rev. Colloquy 94, 98 (2007); Josh Blackman, Keep Calm About the Adjournment Clause and Read Tillman, Volokh Conspiracy (Nov. 22, 2024), https://perma.cc/FB4X-CC9E. ↩︎
28. Ashley v. Keith Oil Co., 7 F.R.D. 589, 591–92 (D. Mass. 1947) (Wyzanski, J.); 1 Hinds’ Precedents § 2 & n.3. ↩︎
29. George T. Washington, Asst. Solicitor General, Mem. Op. for the Attorney General, Presidential Authority to Call a Special Session of Congress (Oct. 17, 1947), https://perma.cc/GLN5-KR66. ↩︎
30. 3 Story’s Commentaries § 1557; Brian L. Frye, Josh Blackman, & Michael McCloskey, Justice John Marshall Harlan: Lectures on Constitutional Law, 1897–98, 81 Geo. Wash. L. Rev. Arguendo 12, 230 (2013). ↩︎
31. Jason Willick & Philip Huff, How a Long-Ago Fight over a Dormant Constitutional Weapon Echoes Today, Wash. Post (Dec. 16, 2024), https://perma.cc/5ZFZ-6JQM. ↩︎
32. Allan Erbsen, Constitutional Limits on the President’s Authority to Adjourn Congress, 2026 U. Ill. L. Rev. (forthcoming 2026). ↩︎