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Noel Canning Redux: Justice Scalia wrote that the President could use the adjournment power to block Senate “intransigence”

Today, President Trump said he could adjourn Congress as a means to make recess appointments.

“If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers of Congress.”

He also referred to pro forma sessions as “phony” and a “scam.” I suspect President Obama would agree with him on this point at least.

Article II, Section 3 provides:

[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper

No President has ever used the adjournment power–certainly not to make recess appointments. But this idea is not novel. Justice Scalia flagged it in NLRB v. Noel Canning (2014).

In that case, the Obama Administration asked the Supreme Court to view the recess-appointment power as a “safety valve” against Senatorial “intransigence.” The majority opinion by Justice Breyer rejected that position.

Justice Scalia concurred, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. Scalia explained that the President has other trump cards at his disposal: namely, the adjournment power. He wrote:

Finally, the Solicitor General warns that our holding may “`disrup[t] the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.'” Brief for Petitioner 64 (quoting Morrison v. Olson(1988)). We do not see, however, how our holding could significantly alter the constitutional balance. Most appointments are not controversial and do not produce friction between the branches. Where political controversy is serious, the Senate unquestionably has other methods of preventing recess appointments. As the Solicitor General concedes, the Senate could preclude the President from making recess appointments by holding a series of twice-a-week ordinary (not pro forma) sessions. And the nature of the business conducted at those ordinary sessions — whether, for example, Senators must vote on nominations, or may return to their home States to meet with their constituents — is a matter for the Senate to decide. The Constitution also gives the President (if he has enough allies in Congress) a way to force a recess. Art. II, § 3 (“[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper”). Moreover, the President and Senators engage with each other in many different ways and have a variety of methods of encouraging each other to accept their points of view.

Let’s use an example. If the Republican-controlled Senate wants to adjourn right now, and the Democratic-controlled House does not want to adjourn right now, there would be a “disagreement with Respect to the Time of Adjournment.” Here, the President’s “allies in Congress” (Senate Republicans) could set the stage for him to adjourn Congress. And once the Senate is adjourned for more than ten days, per Noel Canning, the recess appointment power is activated.


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About The Author

Josh Blackman

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit https://reason.com

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