Presidential Adjournment Power

[politicallefty]

Article II, Section 3 of the US Constitution:

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The bolded part of this section gives the President the power to convene or adjourn Congress. President Truman in 1948 was the last to force Congress into session, the first time since 1856. That power has been used 27 times in total and seems to be relatively noncontroversial and practically unnecessary with the way Congress works now.

My question has to do with the power of the President to adjourn Congress. From what I've gathered, this power has never been exercised. In term of recess appointments, this power looks to be one that gives the President a way to exercise that power, provided his party has at least one House of Congress. According to the majority opinion in NLRB v. Noel Canning:

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All this would take would be either the House or the Senate passing an adjournment resolution where the other did not. In this case, the President merely needs to have his party control either the House or the Senate. That body would pass an adjournment resolution. If the other House chooses another date or doesn't take up the resolution at all, a disagreement would have arisen. The President could therefore force Congress to adjourn. For the sake of recess appointments, he would adjourn Congress for at least 10 days so that he could make said appointments.

It seems like so long as the President has at least one House willing to go along with this, there is no way to stop him. (Obviously, this is basically a moot point either way if one party controls both Houses of Congress.) However, rather significantly, this would seem to allow the President to thwart an opposition Senate if he controlled the House. (For some reason, a President controlling the House but not the Senate is exceedingly rare. It happened during the first two years of the Bush Administration when Jeffords switched. Before that, you have to go back to the 19th century).

Looking at this power overall, when there's a disagreement between the Houses of Congress, the power seems to extend to no later than the rest of the year, as Congress is required to meet on January 3rd of every year (unless a law is passed to change the date). If the requisite circumstances were met, the President could theoretically adjourn Congress for the rest of the year.

I realize a lot of this is theoretical and could easily spark a constitutional crisis, but am I wrong? What does everyone else think?

[politicallefty]

It's feasible, but with the reforms already made in the Senate concerning the filibuster, it would only be useful to give a President a chance to use the recess appointment power if eir party controlled the House but not the Senate.  If eir party controlled the Senate and can't muster a simple majority for a nominee, it's not simply politics that is at fault for the failure.

I completely agree. The only way I think this power could ever be used is if the President's party controls the House and not the Senate (which, as I noted above, has oddly been extraordinarily rare).

As for the actual disagreement between the House of Congress, so long as one House passes a resolution, I'm not sure the courts would even touch the issue. I think it'd likely fall under the political question doctrine. Even if it didn't, I cannot see how one House of Congress passing an adjournment resolution and the other acting as if nothing happened constitutes anything less than a disagreement. I think that's what Justice Breyer was hinting at in the quote I noted above in his majority opinion for the Court.

From the way I understand the case, NLRB v. Canning arose from a situation where the Senate wanted to adjourn, but the House was forcing the Senate to stay in session so as to prevent President Obama from exercising his recess appointment power (when the filibuster for nominations was still in full effect).

I would note Article I, Section 5 as far as Congressional adjournment goes:

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Reading the text of that along with the President's adjournment power would lead me to believe that a disagreement would not require a proactive action of both Houses. Let's say the House passed a resolution to adjourn for two weeks. The Senate fails to take up the resolution. At that point, the House has already adjourned itself, while the Senate is still conducting business. After three days have passed, I think there would be three possible outcomes. The least controversial action would be that the Senate could take up the resolution and agree to adjourn. The other two options would be that the House agrees to return or that the House refuses to return and the President declares that a disagreement has been established and thus adjourns Congress.

Based on the text of the Constitution, if one House of Congress passed an adjournment resolution and the other failed to act on it, I would think the President would be fully empowered to exercise his authority after three days.

[politicallefty]

Fourth option: the President could use the other power in the excerpt you quoted above and force the House back into session, right?

I suppose that is true as another valid option, though it isn't one the President would want to take if he wanted to exercise his recess appointment power. The President has convened both Houses of Congress 26 times, while calling the Senate alone into session 46 times. I do not believe there has ever been an instance where the President has forced only the House into session, although I could be wrong (though I cannot find an instance where that has happened).

[politicallefty]

I feel this warrants a bump, since it's quite possibly that President Biden has the House on his side and the Senate against him. As I noted when I made this topic, apart from a short time during GWB's first term, this specific setup hasn't happened since the 19th century (i.e. President's party controlling the House, but not the Senate). It may not happen at all, depending on what happens in Georgia. However, I felt it was worth bringing up for new discussion just in case.