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?
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.
Obama never purported to have acted under Article II, Section 3, Clause 3. So NLRB v Canning is not binding here.
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
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.
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.
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:
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.
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?
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?
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.
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.
Right there in the cite I gave. The Senate cannot adjourn for more than 3 days without the HoR’s consent.
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.
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:
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.
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 givenif no one else has the floor.
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.