Re: The House Has No Authority to ‘Disagree’ with Senate’s Decision to Remain in Session

The president’s adjournment authority under Article II, section 3 lies at the heart of the scheme of recess appointments of Cabinet officers that some of President-elect Trump’s advisers are pressing him to pursue. As I explained in this post, for purposes of Article II, section 3, there can never be a “Case of Disagreement” between the House and the Senate over the Senate’s staying in session. So apart from the fact that the scheme is, as Yuval Levin puts it, a “constitutional abomination,” it is also unconstitutional.

Further consideration of Article II, section 3 bolsters this conclusion. Under that provision, “in Case of Disagreement between [the House and the Senate], with Respect to the Time of Adjournment, [the president] may adjourn them to such Time as he shall think proper.” Does anyone imagine that the president could in January adjourn the House and the Senate until December and that neither could on its own initiative reconvene until then? That strikes me as absurd.

Once you understand that the president’s power under Article II, section 3 applies only when one House refuses to give its consent to the other’s request to adjourn for the length of time that the second House desires, everything falls into place. By adjourning both Houses “to such Time as he shall think proper,” the president enables the House that wants to adjourn to do so for no more than the period he sets. But nothing in his adjournment prevents either House from exercising its core prerogative to convene whenever it wants, including at any earlier date.

What’s more, if Donald Trump were to purport to adjourn both Houses to a date at least ten days in the future, a simple statement by the Senate majority leader that he would reconvene the Senate before then ought to suffice to prevent the recess from being deemed sufficiently long for recess-appointment authority to apply, so long as the Senate in fact reconvened. A core holding of NLRB v. Noel Canning (2024) is that “for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.” The principle that the Senate is the master of when it is in session implies as well that the Senate should be expected to reconvene when it says it will and that the anticipated length of its recess will be measured accordingly.

Let me emphasize that I very much want President-elect Trump to succeed. That’s one of the large reasons I’m opposing the self-destructive scheme of blanket recess appointments of Cabinet officers.