# Dismissing Congress **URL:** \ **Category:** Factual Questions\ **Created:** [April 16, 2020, 6:14pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935 "2020-04-16T18:14:31Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 17, 2020, 6:03pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/21 "2020-04-17T18:03:10Z")
> [@Freddy\_the\_Pig](#): > > 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. To double post on this comment, it would seem that this interpretation conflicts with the “not more than three days” adjournment clause. Because why would one House need the “consent” of the other to adjourn for more than three days if the extraordinary presidential clause applied to all congressional sessions? You don’t need the other body’s consent, you let the President decide, no? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 17, 2020, 6:08pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/22 "2020-04-17T18:08:59Z")
> [@Ravenman](#): > > I must interject that this maneuver doesn’t make much sense in a strategic way. Nor in a logical way. Trump’s complaint is that the Senate is not available to confirm his nominees. So he wants to convene and then adjourn it to make it especially and super-duper unavailable to confirm his nominees so he can make recess appointments? But according to the Canning case, the Senate is in session when it says it is in session. He cannot convene a body (so he can subsequently adjourn it) that is already in session. The argument is structured in a different way, but it is the same failed 9-0 against argument that Obama made: that the Senate cannot say that it is in session when it holds pro forma sessions. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [April 17, 2020, 6:31pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/23 "2020-04-17T18:31:01Z")
Obama never purported to have acted under Article II, Section 3, Clause 3. So _NLRB v Canning_ is not binding here. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [April 17, 2020, 6:43pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/24 "2020-04-17T18:43:38Z")
> [@Ravenman](#): > > 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. **Moderator Instructions** Once again, please take discussions of Trump’s political strategy to Politics and Elections. Let’s confine this to the constitutional and legal issues. Colibri General Questions Moderator ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 17, 2020, 6:49pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/25 "2020-04-17T18:49:23Z")
> [@AK84](#): > > Obama never purported to have acted under Article II, Section 3, Clause 3. So _NLRB v Canning_ is not binding here. Agreed. But Canning said that the Senate is in session while holding pro forma sessions. So how can the President “convene” the Senate (today 4/17/20) when it is by binding precedent already convened? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [April 17, 2020, 7:16pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/26 "2020-04-17T19:16:44Z")
> [@UltraVires](#): > > Agreed. But Canning said that the Senate is in session while holding pro forma sessions. > > So how can the President “convene” the Senate (today 4/17/20) when it is by binding precedent already convened? You only get to this question by your (I think incorrect, but at the very least minority) view that the adjournment power is limited to sessions convened by the president. I don’t believe that anyone is purporting to plan to “convene” Congress; rather, the proposal is to force an adjournment of the existing session. Although, if you look at both Breyer’s and Scalia’s acknowledgement in Noel Canning that the adjournment power could (if one house of Congress cooperated) be used to force an adjournment for the purposes of making recess appointments, it looks to me like both the majority and the concurrence believe that it would apply to any session. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [April 17, 2020, 7:49pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/27 "2020-04-17T19:49:25Z")
> [@Falchion](#): > > Although, if you look at both Breyer’s and Scalia’s acknowledgement in Noel Canning that the adjournment power could (if one house of Congress cooperated) be used to force an adjournment for the purposes of making recess appointments, it looks to me like both the majority and the concurrence believe that it would apply to any session. With apologies for the double post, you can see the same assumption elsewhere. For example, in Federalist No. 69, Hamilton draws a distinction between the US president’s power to “adjourn” congress “in the single case of disagreement about the time of adjournment” with the British monarch’s power to “prorogue or even dissolve the Parliament” and the Governor of New York’s power to prorogue the state legislature. Given that his point is that the president’s power to adjourn Congress is very limited (compared to other executives), I think it would have been relevant if it was even more limited than that – i.e., if he could only adjourn sessions that he himself had convened. Similarly, Joseph Story in his Commentaries describes the power this way: “The power to adjourn congress in cases of disagreement is equally indispensable; since it is the only peaceable way of terminating a controversy, which can lead to nothing but distraction in the public councils.” Again, there’s nothing here to suggest that it is limited to certain types of sessions. There is a similar provision in various state constitutions and any commentary emphasizes the limit of the dissolution power (again as compared to other executives), but nothing to suggest that it was any narrower than that it is limited to a dispute over time of adjournment. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [April 18, 2020, 1:57am UTC](https://boards.straightdope.com/t/dismissing-congress/851935/28 "2020-04-18T01:57:14Z")
> [@Falchion](#): > > There is a similar provision in various state constitutions . . . There is indeed. It may be of interest to share an account of how and why Governor Adlai Stevenson of Illinois used the power in 1949. Stevenson was a Democrat, the Illinois House had a Democratic majority, and the Illinois Senate was Republican. The account is from John Bartlow Martin’s biography: > [@](#): > > The Republicans . . . anticipated that Stevenson would veto a large number of “Christmas tree bills”. Furthermore, they had become embittered by the controversies . . . In order to give the legislature a chance to override the vetoes, Senator Thompson, the powerful Republican leader, had introduced a resolution on June 21 providing that, when the two Houses adjourned, they do so not _sine die_, that is permanently, as is customary, but instead adjourn only to July 18. Now on the last day [of the session–June 30] the Senate promptly adopted the resolution and sent it to the House. > > Stevenson decided to prorogue the legislature–end its session by executive order, a step derived from English constitutional history, buried in the Illinois constitution, and not attempted in Illinois in the Twentieth Century. . . . The Governor could only prorogue the legislature if the two houses disagreed on adjournment. The Democratic House voted to non-concur in the Senate resolution. Past midnight, the House adopted a resolution offered by Jimmy Ryan that the legislature adjourn _sine die_. The Senate refused to concur. After further maneuvers, Jimmy Ryan offered a resolution certifying to the Governor that the House and Senate were in disagreement on adjournment. It passed. Thereupon, at 5:30 a.m. on July 1, Stevenson issued a proclamation declaring the legislature adjourned until January 3, 1951. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [April 18, 2020, 2:53am UTC](https://boards.straightdope.com/t/dismissing-congress/851935/29 "2020-04-18T02:53:49Z")
> [@Ravenman](#): > > 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. Actually, end of next session, per the Constitution. Each _Congress_ has _two_ sessions, one for every year. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [April 18, 2020, 11:53am UTC](https://boards.straightdope.com/t/dismissing-congress/851935/30 "2020-04-18T11:53:16Z")
> [@JRDelirious](#): > > Actually, end of next session, per the Constitution. Each _Congress_ has _two_ sessions, one for every year. Yes, that’s exactly what I was communicating. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 18, 2020, 5:08pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/31 "2020-04-18T17:08:25Z")
> [@Falchion](#): > > With apologies for the double post, you can see the same assumption elsewhere. > > For example, in Federalist No. 69, Hamilton draws a distinction between the US president’s power to “adjourn” congress “in the single case of disagreement about the time of adjournment” with the British monarch’s power to “prorogue or even dissolve the Parliament” and the Governor of New York’s power to prorogue the state legislature. Given that his point is that the president’s power to adjourn Congress is very limited (compared to other executives), I think it would have been relevant if it was even more limited than that – i.e., if he could only adjourn sessions that he himself had convened. > > Similarly, Joseph Story in his Commentaries describes the power this way: “The power to adjourn congress in cases of disagreement is equally indispensable; since it is the only peaceable way of terminating a controversy, which can lead to nothing but distraction in the public councils.” Again, there’s nothing here to suggest that it is limited to certain types of sessions. > > There is a similar provision in various state constitutions and any commentary emphasizes the limit of the dissolution power (again as compared to other executives), but nothing to suggest that it was any narrower than that it is limited to a dispute over time of adjournment. I concede. The history certainly seems to be on your side and against mine. So the GQ situation is that Congress is in recess but still holding pro forma sessions. The House is holding these sessions and thus requiring the Senate, due to the three day rule, to also hold these sessions. Trump would like the Senate simply to state that they are adjourning, say tomorrow, thereby causing a disagreement between the Houses, so that he, as President, can say that both of you are adjourned as of tomorrow and then start making recess appointments? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 18, 2020, 5:14pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/32 "2020-04-18T17:14:31Z")
Going to miss the edit window: And we would have to agree, then, keeping as GQ as possible, that the criticisms of Trump doing this as being “extraordinary” are misplaced as the clause has two separate and distinct parts. The only “extraordinary” part is the first one, the power of the President to convene Congress, not his power of adjournment in cases of disagreement which is general and applicable at all times, right? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [April 18, 2020, 6:06pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/33 "2020-04-18T18:06:08Z")
> [@UltraVires](#): > > So the GQ situation is that Congress is in recess but still holding pro forma sessions. The House is holding these sessions and thus requiring the Senate, due to the three day rule, to also hold these sessions. Trump would like the Senate simply to state that they are adjourning, say tomorrow, thereby causing a disagreement between the Houses, so that he, as President, can say that both of you are adjourned as of tomorrow and then start making recess appointments? That’s how I understand it would work. The example upthread from Illinois seems to agree that this is how it would work. The obvious “challenge” is that it requires Senate to be an active participant in the plan. > [@UltraVires](#): > > And we would have to agree, then, keeping as GQ as possible, that the criticisms of Trump doing this as being “extraordinary” are misplaced as the clause has two separate and distinct parts. The only “extraordinary” part is the first one, the power of the President to convene Congress, not his power of adjournment in cases of disagreement which is general and applicable at all times, right? Well, I don’t know what “extraordinary” means in this context. I would call it “extraordinary,” but then again I don’t think of extraordinary as a criticism. Any use of the adjournment power would be _unusual_; in the typical instance the two houses agree on the time of adjournment. Indeed, it has never been used. And, to specifically invent a disagreement for the purpose of making recess appointments might be viewed by some as a “misuse” of the power. On the other hand, it is a generally available power. And (and this is my point with my frequent references to Noel Canning), as recently as 2014, all nine justices of the Supreme Court viewed such a “recess appointment scheme” as an available and non (legally) controversial (if obviously political) use of the power. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 18, 2020, 6:55pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/34 "2020-04-18T18:55:17Z")
> [@John\_Bredin](#): > > 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] Right there in the cite I gave. The Senate cannot adjourn for more than 3 days without the HoR’s consent. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 18, 2020, 7:00pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/35 "2020-04-18T19:00:11Z")
> [@UltraVires](#): > > Agreed. But Canning said that the Senate is in session while holding pro forma sessions. And to add on, the Senate must conduct regular business for it to be in session so theoretically the minority party could make a Quorum Call and force all Senators (those not regularly excused) to come into the chambers. Doubt much work would actually get done but the Dems could have done it to screw with the Pubs while they were going pro-forma to block Obama making recess appointments. Kind of the same idea as forcing a real filibuster and not accepting a procedural one. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 19, 2020, 2:37am UTC](https://boards.straightdope.com/t/dismissing-congress/851935/36 "2020-04-19T02:37:25Z")
> [@JRDelirious](#): > > 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’m curious: If a member of either chamber demanded to be recognized during these pro-forma sessions will they be recognized? If so is it possible for them to demand a quorum and force members to return? ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [April 19, 2020, 11:16am UTC](https://boards.straightdope.com/t/dismissing-congress/851935/37 "2020-04-19T11:16:42Z")
> [@Whack-a-Mole](#): > > I’m curious: > > If a member of either chamber demanded to be recognized during these pro-forma sessions will they be recognized? If so is it possible for them to demand a quorum and force members to return? Most members simply will not be recognized by the presiding officer, because at no point will the presiding officer seek to recognize anyone. For example: > **[CREC-2020-04-06-senate.pdf](https://www.congress.gov/116/crec/2020/04/06/CREC-2020-04-06-senate.pdf)** The exception is the Speaker of the House or the Senate Majority Leader can arrange things so that the presiding officer stops to recognize someone to do something they want them to do. This happened last week when McConnell tried to pass the stimulus bill during the pro forma session. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 19, 2020, 4:07pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/38 "2020-04-19T16:07:56Z")
> [@Ravenman](#): > > Most members simply will not be recognized by the presiding officer, because at no point will the presiding officer seek to recognize anyone. If a member requests recognition and it is not given, then it is NOT a session (as per SCOTUS) since regular business cannot be conducted. In that case there would be a legal argument that the Senate has recessed. Second, it is not that the presiding office needs to seek to recognize anyone. The member would simple go to the mic and ask for recognition which shall be given[if no one else has the floor](https://crsreports.congress.gov/product/pdf/RL/96-452). > [@](#): > > If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the presiding officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [April 19, 2020, 5:04pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/39 "2020-04-19T17:04:19Z")
But this rathole goes all the way down. Per Senate rules, debate does not constitute “business.” Business is the consideration of legislation, nominations, amendments, and motions. By that measure, pro forma sessions already mostly fall short. And the request for a quorum call leads to a dead end. If the roll is called, and a quorum isn’t present, one of two things happen: a motion to compel the attendance of Senators is in order, or the Senate must immediately adjourn. There is not a maneuver that would allow a rank-and-file Senator to force the live quorum, as the Majority Leader or his designee always has priority of recognition and will simply move to adjournment (which is a non-debatable motion). ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 19, 2020, 5:18pm UTC](https://boards.straightdope.com/t/dismissing-congress/851935/40 "2020-04-19T17:18:46Z")
> [@Ravenman](#): > > But this rathole goes all the way down. Per Senate rules, debate does not constitute “business.” Business is the consideration of legislation, nominations, amendments, and motions. By that measure, pro forma sessions already mostly fall short. > > And the request for a quorum call leads to a dead end. If the roll is called, and a quorum isn’t present, one of two things happen: a motion to compel the attendance of Senators is in order, or the Senate must immediately adjourn. There is not a maneuver that would allow a rank-and-file Senator to force the live quorum, as the Majority Leader or his designee always has priority of recognition and will simply move to adjournment (which is a non-debatable motion). SCOTUS said that to be in session the Senate must conduct business if any comes up. Pro forma sessions fit the criterium as long as no regular business comes up. And you yourself say why you make a quorum call. Either the absent Senators are sent for or the session is adjourned. If you have more Senators wishing to force the issue then the Majority Leader’s caucus the motion to adjourn will fail and the motion to compel members will pass. So you are right it cannot be a lone member but a group of members can do so. [Previous page](https://boards.straightdope.com/t/dismissing-congress/851935.md?page=1) [Next page](https://boards.straightdope.com/t/dismissing-congress/851935.md?page=3)