Allan Erbsen, University of Minnesota School of Law, has posted Constitutional Limits on the President's Authority to Adjourn Congress:
Can the President adjourn Congress, declare that the adjournment constitutes a recess, and appoint cabinet officers without the Senate’s consent? President-Elect Donald Trump has considered invoking this supposed power. Adjourning Congress would enable the President to appoint otherwise unconfirmable officials. Even if the President does not adjourn Congress, the looming threat of adjournment could chill the Senate’s review of nominees.--Dan Ernst
This Article concludes that the President cannot evade the Senate’s role in the appointments process by adjourning Congress. Three clauses in the Constitution inform the analysis: the Consent Clause, which requires each house to consent to the other’s adjournment; the Convening Clause, which authorizes the President to convene one or both houses in an “extraordinary” session; and the Disagreement Clause, which allows the President to adjourn Congress when the houses disagree about whether adjournment is appropriate. A plan that has percolated among some House members calls for manufacturing a disagreement with the Senate that the President would cite as a basis for adjourning Congress. I call this the “contrived adjournment plan.”
The contrived adjournment plan violates the Constitution for four independent reasons. 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. Second, even if the Disagreement Clause applies to regular sessions, it does not enable the President to adjourn the Senate if the Senate allows the House to adjourn. The House and Senate each possess independent authority to continue meeting while the other adjourns. If the Senate permits the House to adjourn, then the Senate’s refusal to adjourn itself would not create a constitutionally significant disagreement that the President could resolve. 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. Fourth, even if the Senate could not reconvene, a forced adjournment of the Senate arguably would not create a “recess” that would permit the President to appoint officials without the Senate’s consent.
For the past 235 years, the Disagreement Clause has not been a cannon aimed at the Senate, waiting for a President to light the fuse. The Disagreement Clause has a narrow role that does not include empowering the President to evade Senate review of appointments. The Constitution’s separation of powers framework is more resilient than Machiavellian schemes assume.
