Notice & Comment

Why the Senate Likely Cannot Be Called Back Into Session Under the Constitution

In response to mass shootings across the country, several politicians, including President Trump, have called for increased gun-control measures. House Democrats had already passed some gun control bills before the mass shootings, and Speaker Pelosi has urged the Senate to consider the legislation. To encourage immediate action, Speaker Pelosi recently wrote a letter to President Trump requesting that he use his constitutional authority to bring the Senate back from recess to consider gun-control legislation. However, based on Supreme Court precedent, President Trump likely does not have that power.

Article II, Section 3 of the Constitution gives the president the power to “on extraordinary occasions, convene both Houses, or either of them . . . .” This power is predicated on a house of Congress not already being “convened.” Although the Senate is on what is colloquially called its August Recess, it is legally not in recess. As the Senate has wanted to deny President Trump the opportunity to make recess appointments, it will not technically go on recess. Instead, it will meet every three days for a “pro forma” session, where the session is quickly gaveled open and then closed.

The Supreme Court on a 9-0 decision has already found under similar facts that the Senate holding pro forma sessions means it’s in session and the president cannot use the president’s recess authority. In Noel Canning vs NLRB, President Obama made recess appointments when the Senate was in pro forma session, arguing that the Senate was really on recess at it was not meeting. However, the Supreme Court noted that the Senate still can, and has, conducted business during pro forma sessions and thus is not on recess.  Additionally, the Supreme Court explicitly limited the recess appointment authority by specifying that a recess “less than 10 days is presumptively too short to fall within the Clause.”

Although the decision was limited to the Recess Appointments Clause, its reasoning likely precludes President Trump from calling the Senate back into session. Here, the Senate is in pro forma sessions like in Noel Canning and can technically conduct business. Additionally, the Senate is not going more than 10 days between pro forma sessions.

Why then did Speaker Pelosi write her letter? She likely already knows that President Trump cannot call the Senate back into session as it is already technically in session. She also likely knows that once back in session, there is no reason to think that Majority Leader McConnell will bring gun control legislation to the floor. Thus, she likely sent the letter as a messaging strategy and to drive a wedge between Senate Republicans and President Trump.

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