The President has suggested that he can adjourn
Congress and cause a constructive recess, which would allow him to fill vacant
positions during the recess. The question of the scope of the President’s
adjournment power has been discussed in prior judicial materials. For example, Judge
Wyzanski explained:
[T]here remains the
difficult problem as to whether the first session of the 80th Congress has
already been brought to a close not by concurrent resolution, by act of
Congress or by the Twentieth Amendment, but by the action of Congress in
reconvening on November 17 pursuant to the Proclamation of President Truman
issued on October 23, 1947, No. 2751. 12 Fed. Reg. No. 210; Oct. 25, 1947.
Article II, § 3, of
the United States Constitution provides that the President ‘may on
extraordinary occasions, convene both Houses, or either of them.’ This is
language of unusual breadth. It is not limited to the situation where a
particular Congress has never met in session, or where a Congress has met and
adjourned sine die. It also covers the situation where Congress or either House
is not meeting because it is in recess under a temporary adjournment.
If the President
convenes a Congress that has never met, of course, he is convening it in a new
session, which is called in the proclamation an ‘extra’ session. See e.g.
Proclamation of President Hoover, March 7, 1929, 46 Stat. 2981. If the
President convenes a Congress that has met but adjourned sine die, he is
likewise convening it in a new session, which is called an ‘extra’ session. See
e. g. Proclamation of President Roosevelt, Sept. 13, 1939, No. 2365, 54 Stat.
2660. But in the case at bar we are faced with a situation where when the
President issued his proclamation Congress had met and adjourned only
temporarily. Is the reconvening of Congress pursuant to the President’s call
automatically the beginning of a new session and the close of an old session?
Jefferson evidently thought it would be. § 51 of his Manual states that if
Congress is ‘convened by the President’s Proclamation, this must begin a new
session, and of course determine the preceding one to have been a session.’ This manual is, of
course, entitled to great weight because since 1837 it has been, by virtue of a
still effective rule of the House of Representatives, governing authority in
that House in all cases where there is no conflict with the standing rules and
orders of that House. House Rule 43, House Document #810, 78th Congress, 2d
Sess. See Congressional Record, 80th Cong., 1st Sess., 36.
On the other hand, the
present Parliamentarian of the House and Secretary of Senate have considered
the reassembling of the Congress on November 17, 1947, as a continuation of the
first session. In their judgment no extra or special session has begun. And
their view is finding expression every day in the pagination of the
Congressional Record and in like official Congressional documents. Congress so
far has apparently acquiesced in this action of its delegates; though the
matter does not appear to have been debated.
Moreover, the view of
these officers of Congress is not in conflict with any specific language of
President Truman’s Proclamation. Unlike the Proclamations of Presidents Hoover
and Roosevelt already cited, the Proclamation of President Truman dated October
23, 1947, does not refer to an ‘extra’ session which will result from the
convening of Congress pursuant to the President’s call.
It is unnecessary for
me in the case at bar to decide which of these conflicting views is correct.
Even if Jefferson’s manual is correct, the new amendment to the Rules cannot go
into effect prior to February 17, 1948. It is quite possible that before then
Congress by legislative action will conclusively remove any ambiguity as to the
proper numerical description of its present session, or will more explicitly
provide a date when the new amendments to the rules shall go into effect. And
it seems to me fitting for a judge not to decide a controversy which has no
present importance and may become moot by legislative action.
Ashley v. Keith Oil
Co., 7 F.R.D.
589, 591–92 (D. Mass. 1947) (Wyzanski, J.) (emphasis added).
As Wyzanski’s
opinion above indicates, President Trump’s position is not frivolous; rather,
it is supported by some of our best parliamentary authority: Jeffferson’s Manual. In short, the merits of the President’s
position remain unclear—the question remains one for the courts to decide. And
if anyone tells you otherwise, and tells you the issue is clear, settled, or
obvious ….
----
----
Jefferson’s Manual at Section 51:
Congress separate in two ways
only, to wit, by adjournment, or dissolution by the efflux of their time. What,
then, constitutes a session with them? A dissolution certainly closes one
session, and the meeting of the new Congress begins another. The Constitution
authorizes the President, “on extraordinary occasions to convene both Houses,
or either of them.” I. 3. If convened
by the President’s proclamation, this must begin a new session, and of course
determine the preceding one to have been a session. So if it meets under the
clause of the Constitution which says, “the Congress shall assemble at least
once in every year, and such meeting shall be on the first Monday in December,
unless they shall by law appoint a different day.” I. 4. This must begin a new session; for even if the last adjournment
was to this day the act of adjournment is merged in the higher authority of the
Constitution, and the meeting will be under that, and not under their
adjournment. So far we have fixed landmarks for determining sessions.
Seth
Seth Barrett Tillman, Judge Wyzanski on the Scope of the President’s Adjournment Power, New Reform Club (Apr. 17, 2020, 2:59 AM), <https://reformclub.blogspot.com/2020/04/judge-wyzanski-on-scope-of-presidents.html>;
