I learned today that a president can legally dismiss both houses of congress, but under what circumstances can the US President dismiss both houses of Congress?
This, however, requires both houses to be in disagreement. He can’t do it unilaterally.
The provision has never been used.
He also apparently believes that dismissing both Houses gives him peremptory powers to appoint officials; never mind the reason that there are so many openings in his administration are due to a failure to nominate even marginally acceptable candidates and often no one at all, and that those appointments still have to be confirmed the next time the Senate is in session.
His edict that he can unilaterally lift state-issued isolation orders should be a wakeup call to anyone who believes that Trump has any respect for or knowledge of the Constitution, and such an attack on “states’ rights” ought to give pause to even the most ardent conservative Trump supporter.
Stranger
What does “both houses to be in disagreement” mean? Can you provide an example that would justify the president dismissing congress?
More specifically, disagree about when to adjourn not just any disagreement.
Moderator Note
Save the political commentary for other forums. Keep strictly to the legal question posed in the OP.
Colibri
General Questions Moderator
It’s in what I quoted.
I suppose if the Senate voted to adjourn on April 30, and the House voted against it, that could be such a disagreement. But for either house to adjourn, they would have to assemble in Washington for a formal vote, which is part of the issue. Both houses are currently technically being kept in session by “pro forma” sessions every few days, even though most members are not present. This prevents Trump from making recess appointments.
First of all, there is a presumption that both Houses should be meeting at the same time to do the work of the Legislature. This is shown in Article I Section 5
So let’s say the Senate passes a motion to adjourn Dec 1st and the House passes a motion to adjourn Dec 8th and neither house wants to compromise. Then the President would step in and choose a day for both of them to adjourn.
Those are called “recess appointments” and are authorized under Article II Section 2 of the Constitution:
I know it has never been used or tested, but it seems that the disagreement on time of adjournment language would only apply once the President has convened them in extraordinary times. And as they are technically in session, this clause does not apply.
Or am I parsing the commas wrong?
Yeah, my reading has to be right because of the other provisions:
So it seems pretty clear to me that Congress sets the rules about when it meets and for how long. But it must meet at least once per year, for however long it likes, and both Houses must concur on the adjournment date. If they don’t, they stay in session.
But also it looks as if the founders imagined a time when Congress was not in session, but the President noticed a pressing need and could use an extraordinary power to call them into session. If Congress didn’t want to be called into session, they could vote to adjourn 4 seconds from the opening gavel, thereby preserving the separation of powers. But if the Houses disagree, then the President, the one who called the session, breaks the tie and sets the date of adjournment.
But again, Congress is in session in a pro forma fashion, so they cannot be convened. They are already convened. What is the opposing argument to that?
Indeed, SCOTUS ruled that if the legislative body says it is in session, even pro-forma, it is in session. So for example the House right now holds a pro-forma session (open, say the invocation and Pledge, receive communications, report the “first reading” of new bills filed, leaders make procedural announcements, move for a recess) every Tuesday and Friday and in between it stands “in recess subject to the Call of the Chair”, that is, on call to be summoned to the chamber on whatever notice is prudent (when Hoyer said he did not plan on another full session until May 4, that was merely an announcement of when he expect the next scheduled vote; if something else needs taking care of before, then the Call of the Chair is made and they take care of it).
I don’t understand where you’re getting that from. The power kicks in any time the two Houses disagree as to the time of adjournment, whether during a special session or during the ordinary annual session of Congress.
I disagree. I think that you need to read the adjournment and assembly provisions together. So that the Constitution provides: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days[.] [But], in Case of Disagreement between them, with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper.”
(Similarly, “[t]he Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.” But “[the President] may, on extraordinary Occasions, convene both Houses, or either of them.”)
But the power to adjourn applies to any session where the two houses disagree about the time of adjournment. A more interesting question is whether there are limits on the adjournment power; for example, if the Senate proposes to adjourn on May 1 and the House does not consent and proposes to adjourn on May 15, can the President “resolve” the issue by adjourning them immediately? (I think the answer must be yes). And, can the power to adjourn them “to such Time as he shall think proper” have limits? That is, can the President prevent Congress from reassembling of their own accord? (I think the answer must be no).
Back to the OP, the key is a disagreement on adjournment (for more than three days). Which I think would be implicated if one house proposes to adjourn and the other simply does not consent. Interestingly, both the majority and the concurrence in the Noel Canning case on recess appointments (that is, all nine justices) recognized that a president could use the adjournment power to force a recess for the purpose of making recess appointments. But it requires the cooperation of one house of Congress. Since only Congress can “create” the disagreement that gives the president that power.
Straying slightly from a GQ answer, the fact that the Senate is deliberately holding pro forma sessions to avoid going into recess (and the House is controlled by the opposition party) makes it unlikely that the adjournment power will available to the president in this instance.
Without getting more political than necessary to answer the question :), why is the Senate with the GOP in the majority holding pro forma sessions now? I can see why the Senate did under Obama, as in the article linked by Alley Dweller, and why the House would do it now, but wouldn’t the GOP leadership in the Senate favor allowing Trump to make recess appointments? [Somewhat political]Sen. McConnell isn’t usually afraid to tell his opponents to pound sand, why would he be accommodating to the Dems on this issue?[/SP]
What constitutes a disagreement and how exactly the President is brought into it are open questions.
It was actively discussed during the Garland debacle as a way that Obama might force him onto the Court, dismissing Congress and then appointing him. Nothing came of it.
Depending on how its interpreted this could make a President powerful as hell.
January 3rd, New Congress is sworn in.
January 4th Congress disagrees as to adjournment, the President adjourns them both till December 31st of the next year.
Moderator Note
That’s more political than is necessary in this forum. The simple answer is that McConnell is protective of Senate prerogatives with regard to approval of appointments, and doesn’t want to give that up even to a President of the same party. If you wish a more extended answer, please open another thread in Politics and Elections.
Colibri
General Questions Moderator
I see your point. I read the clause as self-contained. The disagreement as to adjournment applies to adjournment of the session mentioned in the opening clause of the sentence: the one the President called.
A contrary reading would be a very unique intrusion by one branch upon the other that, off the top of my head, I don’t see anywhere else in the original Constitution.
I assume the “nor to any other place” is to prevent rival parties in the good old days from convening the house or senate they control in a place more awkward for the opposition to reach, back in the days when it was a lot of work to get from one end of the 13 colonies to the other. Same for the sitting time - I presume when this was written, they expected short sessions maybe once or twice a year to deal with accumulated business, and any other time when it was urgent, the prez got to call them to deal with an urgent matter.
I must interject that this maneuver doesn’t make much sense in a strategic way.
If the Senate were forced to adjourn - let’s set aside how - Trump could recess appoint a bunch of judges until the middle of the next session of Congress. Then, those judges are out because the appointments are only temporary. If a Dem wins the White House, or controls the Senate at that time, such appointments will last for what, like a year and a half?
With the Senate in Republican control, it makes more sense for Trump to lean on McConnell to keep the Senate in session to approve permanent appointments to those positions.
This all being the case, delving deep into the legalities of adjournment is an interesting exercise, but if the President were to pull the trigger on this, it would likely represent the worse course of action available to him.