The Presidential Adjournment Clause

. . . in Case of Disagreement between [both Houses] . . . with Respect to the Time of Adjournment, [the President] . . . may adjourn them to such Time as he shall think proper. . . .

—James Burnham & Louis J. Capozzi III

Introduction

Although the Framers of the Constitution largely gave each house of Congress the power to regulate its internal affairs, the Congressional Adjournment Clause requires that the Senate and House of Representatives must agree before adjourning for more than three days.¹ If the two houses disagree “with Respect to the Time of Adjournment,” the Presidential Adjournment Clause gives the President the power to adjourn them until “such Time as he shall think proper.” No President has ever exercised this power, but in NLRB v. Noel Canning (2014),² the U.S. Supreme Court recognized that a President could use the adjournment power to force the Senate into recess and make recess appointments.

History Before 1787

The Presidential Adjournment Clause arose in part from British practice.³ Traditionally, the king could unilaterally order Parliament to adjourn (a break within a session).⁴ The king could also unilaterally end Parliament’s session either by a writ of prorogation (ending the session but specifying when Parliament would meet again) or by dissolving Parliament and requiring a new election.⁵ This broad authority reflected Parliament’s medieval origin as a group of advisors to the monarch.⁶

As Parliament grew in importance and power, however, the king’s practical ability to rule without Parliament diminished. In the mid-fourteenth century, King Edward III conceded that the monarch could not raise taxes without Parliament’s consent.⁷ In the seventeenth century, King Charles I challenged this arrangement by dismissing Parliament and ruling without it for eleven years.⁸ The king’s effort to raise revenues without convening Parliament was one cause of the English Civil War (1642–1651).⁹ King James II likewise dismissed Parliament in 1685 and tried to raise money without it. These actions contributed to his overthrow in the Glorious Revolution of 1688. The English Bill of Rights later reaffirmed that revenue measures required parliamentary assent.¹⁰

The colonies remained suspicious of the king’s power to prevent the legislature from meeting. In 1765, King George III’s royal governors dissolved the Virginia Assembly because it opposed the Stamp Act. And in 1768, the royal governors dissolved the Massachusetts and South Carolina legislatures over the Massachusetts Circular Letter, which challenged Parliament’s taxation authority.¹¹ Consequently, the Declaration of Independence accused the king of abusing his power to prevent legislatures from meeting: “He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected . . . .”¹²

After independence, the states addressed this charge in their constitutions. Many early constitutions gave the governor no power to adjourn the state legislature,¹³ and several explicitly denied the governor this power.¹⁴ Only four gave the governor some power to adjourn the legislature temporarily: New York, Massachusetts, Maryland, and New Hampshire.¹⁵ The Framers of the Constitution would follow this minority practice.

The Constitutional Convention

On May 28, Charles Pinckney of South Carolina proposed allowing the President to “prorogue” Congress on “special occasions” and to adjourn them in cases of disagreement.¹⁶ James Wilson of Pennsylvania prepared a draft for the Committee of Detail that gave the President the power to “prorogue” Congress for a limited (but unspecified) number of days.¹⁷ (Wilson omitted that power in his next draft.) Editing Wilson’s draft, John Rutledge inserted what became, in substance, the final text.¹⁸ It referred to the President’s power to adjourn but not the power to prorogue.¹⁹ The provision generated no recorded debate at the Philadelphia Convention. Considering the Framers’ concern about the king’s power over the legislature’s schedule, it is unclear why the Constitution gave the President any power to adjourn Congress.

The Ratification Debates

Given their experience living under British rule, it is hardly surprising that the Framers allowed the President a much weaker power to prevent Congress from meeting. First, the king could prorogue or even dissolve Parliament at will. However, in Federalist No. 69, citing the governor of New York’s limited adjournment power, Alexander Hamilton observed that “the President can only adjourn the national legislature in the single case of disagreement [between both houses] about the time of adjournment.” Second, the king theoretically could rule without Parliament for lengthy periods of time. However, Article I, Section 4 provides that “The Congress shall assemble at least once in every year.” As a result, the President’s already restricted adjournment power is limited to periods of less than one year.

The Presidential Adjournment Clause received limited attention during the ratification debates. In South Carolina, Rawlins Lowndes complained that the President’s “power of adjourning to any day he thought proper” was too “monarchical.”²⁰ At the Virginia ratification convention, James Monroe questioned how legislative adjournment would work. In response, James Madison insisted that the President’s role was necessary in situations where the two houses disagreed as to adjournment, and Edmund Randolph explained that “[i]f [the President] be honest, he will do what is right. If dishonest, the representatives of the people will have the power of impeaching him.”²¹

Executive Branch Practice

Congress has never failed to agree on adjournment. Accordingly, the President has never used his adjournment power. In 2020, President Donald Trump raised the possibility of adjourning Congress in order to make recess appointments, citing the Senate’s slow pace in confirming his nominees.²² However, he ultimately declined to exercise this power.

Judicial Precedent

The Presidential Adjournment Clause received some attention in 2012. President Barack Obama attempted to make recess appointments during short, three-day breaks in the Senate calendar. In NLRB v. Noel Canning, the Supreme Court ruled that Obama’s appointments were invalid. However, the case was not a total loss for the executive branch. The Court also held that the Recess Appointments Clause empowered the President to fill vacancies that arose both before and during the Senate’s recess.²³

Justice Stephen G. Breyer wrote the majority opinion, and Justice Antonin Scalia concurred in the judgment. Both jurists observed that the Presidential Adjournment Clause could create a potential workaround if the Senate would not confirm the President’s appointees. Specifically, the President could potentially ally with one house of Congress to create a disagreement on adjournment. Once the houses disagreed, the President could force an adjournment, and while the Senate was adjourned, even for a short period of time, the President could fill the executive branch with recess appointments. This workaround could circumvent the Senate’s power to withhold “advice and consent” from executive branch nominees.²⁴

Under Justice Breyer’s broad interpretation of the Recess Appointments Clause, this maneuver could potentially fill every vacancy outstanding at the time of the forced adjournment. However, under Justice Scalia’s narrower interpretation, the President could fill only those vacancies that arose after the President forced an adjournment.²⁵

Open Questions

• The Congressional Adjournment Clause provides that one house cannot “adjourn for more than three days” without the consent of the other house.²⁶ Does this three-day time limit restrict the President’s ability to adjourn Congress to three days?²⁷ Given the ability of each house to adjourn unilaterally for three days, would that restriction make the Presidential Adjournment Clause superfluous? Or does the President have the power to adjourn Congress for a period longer than three days until “such Time as He thinks proper”?
• What precisely needs to happen for the President to conclude that a disagreement as to adjournment exists between the houses? If the House votes to adjourn for ten days and the Senate ignores the House’s vote and remains in session, could the President proceed to adjourn Congress—and for whatever period the President deems proper? Or would the house seeking to adjourn need to specify a deadline by which the other house must respond? Does a house wishing to adjourn need to notify the President of a disagreement? Is there any way to challenge the President’s conclusion that a disagreement between the houses exists?

1. Art. I, § 5, cl 2. ↩︎
2. 573 U.S. 513 (2014). ↩︎
3. Federalist No. 69 (Hamilton). ↩︎
4. Robert G. Natelson, The Origins and Meaning of “Vacancies that May Happen During the Recess” in the Constitution’s Recess Appointments Clause, 37 Harv. J.L. Pub. Pol’y 199, 207–10 (2014); 1 Blackstone 179. ↩︎
5. Natelson, supra at 207–10; 1 Blackstone 179–801. ↩︎
6. John Baker, An Introduction to English Legal History 217 (2019). ↩︎
7. Id. at 218. ↩︎
8. Id. at 227. ↩︎
9. Consumer Fin. Prot. Bureau v. All Am. Check Cashing, 33 F.4th 218, 226 (CA5 2022) (en banc) (Jones, J., concurring). ↩︎
10. 1 Wm. & Mary c. 2, § 7, in 3 Eng. Stat. at Large 417 (1689). ↩︎
11. Andrew Roberts, The Last King of America: The Misunderstood Reign of George III, at 296 (2021). ↩︎
12. Declaration of Independence, ¶ 7. ↩︎
13. Ga. Const. of 1777, art. VII; N.C. Const. of 1776, art. X; N.J. Const. of 1776, arts. V & VI; Pa. Const. of 1776, § 9; Va. Const. of 1776. ↩︎
14. Del. Const. of 1776, art. X; S.C. Const. of 1778, art. XVII; Va. Const. of 1776. ↩︎
15. Md. Const. of 1776, art. XXIX; Mass. Const. of 1780, Pt. 2, ch. 2, § 1, art. VI; N.H. Const. of 1784; N.Y. Const. of 1777, art. XVIII. ↩︎
16. 3 Farrand’s 111. ↩︎
17. 2 Farrand’s 158. ↩︎
18. Id. at 171. ↩︎
19. Id. at 600. ↩︎
20. 4 Elliot’s 310–11. ↩︎
21. 3 Farrand’s 312. ↩︎
22. Josh Breshnahan, Trump Threatens to Adjourn Congress to Push Through Nominees, Politico (Apr. 15, 2020), https://perma.cc/969T-35VG. ↩︎
23. 573 U.S. at 538. ↩︎
24. Id. at 555; id. at 614 (Scalia, J. concurring in the judgment); Josh Chafetz, A Fourth Way? Bringing Politics Back Into Recess Appointments (And the Rest of the Separation of Powers, Too), 64 Duke L.J. Online 161, 169 (2015). ↩︎
25. Michael Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1490 (2005). ↩︎
26. Art. 1, § 5, cl. 4. ↩︎
27. Adam J. White, The Flaw in the President’s Newest Constitutional Argument, The Atlantic (Apr. 17, 2020), https://perma.cc/FMT6-UMXB. ↩︎