Josh Blackman | 12.17.2024 12:20 PM

Last month, Washington was in a tizzy about whether President Trump could use the adjournment power as a means to create a recess, and then make recess appointments for his cabinet member. That frenzy seems to have died down, but scholars continue to investigate the issue.

There are two primary legal questions to consider about the adjournment clause. First, can the President invoke the clause to adjourn any session of Congress, or only those extraordinary sessions that he may convene? Second, does the adjournment power empower the President to decide when to adjourn Congress, or does it merely empower him to decide the duration of an adjournment?

I'd like to flag two recent entries in the debate. First, Alan Erbsen wrote a draft article titled "Constitutional Limits on the President's Authority to Adjourn Congress." Second, Jason Willick and Phillip Huff publishded a detailed column in the Washington Post, titled How a long-ago fight over a dormant constitutional weapon echoes today.

Erbsen contends that the adjournment power is limited to extraordinary sessions:

First, the Constitution tethers the Disagreement Clause to the Convening Clause. The President may adjourn Congress only if the President convened at least one of the houses in an extraordinary session. If both houses convened on their own in a regular session, the President lacks power to adjourn them.

To his credit, Erbsen cites Section 1557 of Justice Story's Commentaries, which suggests the power is not so limited:

§ 1557. 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.

Erbsen also contends that the President can only determine the date that Congress can adjourn till, and even then, Congress can choose to reconvene on its own power:

Third, even if the President can force the Senate to adjourn, the Senate can reconvene to protect its role in the appointments process. The President can authorize the Senate to remain adjourned until a specified date, but cannot suppress the Senate's inherent authority to reconvene on an earlier date.

Mike Stern made a similar point on the Lawfare Podcast (starting at 26:21). Stern argues that this power is only triggered when the House and Senate both wish to adjourn, but they do not agree how long that adjournment should be. And, the President can mediate that disagreement to decide how long the adjournment should be. He argues the power is not triggered when the House wants to adjourn but the Senate does not want to adjourn.

Erbsen also cites a contrary source, which I am embarrassed that I had forgotten about: Justice John Marshall Harlan's lecture notes, which I transcribed with Brian Frye and Michael McCloskey. Harlan seems to be saying the President has the broader power to adjourn Congress, and not just to set the date on........

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