I’m not a professor of constitutional scholarship, just a jack-schlub American who has an opinion. “May” is as far as I’m qualified to go.
Could Obama have invoked his Article II, Section 3 power to adjourn the Senate, as the Senate and House did not agree with respect to their time of adjournment?
“…[The President] 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;…”
Truman called Congress back into session in 1948 as an (effective) election stunt; I don’t know of any President who’s ever adjourned them like that. I suppose it depends on the nature of the “Disagreement.”
The thing is that there is no disagreement between the House and the Senate as to the question of adjournment. Had the Senate voted to adjourn until January 23rd, but the House rejected the Senate’s request (since adjournments of either house for more than 3 days must be approved by both houses of Congress), then the President could resolve the dispute. That has not happened.
Plus, on the short list of things that signal the end of the republic, the ability of the White House to unilaterally tell Congress to go home against its wishes is pretty damn authoritarian. Does anyone really think that the Framers of the Constitution wanted the President to have the power to capriciously send Congress home?
[Appointments Challenge Senate Role, Experts Say](http://www.nytimes.com/2012/01/08/us/politics/experts-say-obamas-recess-appointments-could-signify-end-to-a-senate-role.html?_r=1&sq=senate recess&st=cse&scp=1&pagewanted=all)
My understanding is that courts have frequently ruled that an interpretation which would have the effect of reducing a constitutional (or legal) right to irrelevancy is inherently incorrect on those grounds.
Obama himself was in the Senate when the Democrats first came up with the pro-forma tactic. ISTR reading somewhere that he was in favor of it at the time, in which case his turnabout smacks of expediency, considering that he is himself something of a constitutional law expert. But I could be wrong.
I’m not sure if your remedy is the courts or the polls. If you mean the latter, I would note that the public doesn’t pay much attention to the finer points of constitutional law, and will generally support any interpretation that works in favor of policies they happen to support at the moment. It’s only years later, when the precedent is invoked to support policies that they don’t like that the public decides that the constitution should read differently, but by then the precedent may be too entrenched to uproot. (An example of this is the Commerce Clause precedents which support the government position WRT the HCR law.)
The courts pay somewhat more attention to these matters, but they’re influenced as well. I have a feeling that the same justices might rule differently on this matter if it was Bush versus the Democrats or Obama versus the Republicans (much like posters to this MB, FTM).
I read that power to adjourn as applying only to the special session that he has the power to call. If you read the text of Article II Section 3, each independent power is separated by semi-colons. What you quoted is within one semi-colon.
I don’t believe that the President can simply send Congress packing.
The President still has the power to appoint, he just loses the power to bypass the senate with agency rulings.
That makes sense, and I’m strongly inclined to agree with you, but don’t know that it’s ever been definitively settled.
In the sentence immediately preceding what you cut from my post, I thought I made it clear that I was talking about the courts.
DOJ says the recess appointments are cool - not exactly a big shock: HuffPost - Breaking News, U.S. and World News | HuffPost