The Flaw in the President’s Newest Constitutional Argument

As commentators have quickly observed, this strategy has been floated in the past but never tried—and rightly so. It radically upends the normal process for appointing officers, a combination of presidential nomination and Senate approval, a process that was intended to prevent a president from filling up the federal administration with “candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure,” as Alexander Hamilton explained in Federalist No. 76. Requiring the Senate’s consent for the appointment of officers is “an efficacious source of stability in the administration,” he added.

That said, there is at first glance some plausibility to the president’s strategy. In the Supreme Court’s 2014 NLRB v. Noel Canning case, in which the Court unanimously struck down two attempted “recess” appointments by President Barack Obama because the Senate was not actually in recess, both Justice Stephen Breyer’s opinion for the Court and Justice Antonin Scalia’s concurring opinion suggested that a president might be able to create a recess by adjourning both chambers of Congress. Although their brief musings weren’t a binding “holding” of the Court, the fact that the justices discussed it in passing (what lawyers call dictum) means that it deserves to be taken seriously.

But when one does take the argument seriously, a crucial flaw soon appears. Although Article II of the Constitution empowers the president, in limited circumstances, to adjourn the Senate and the House “for such time as he shall think proper,” another constitutional provision expressly prohibits either the Senate or the House from adjourning for more than three days without the other chamber’s consent. Article I, Section 5 provides that “neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” This is the provision that caused the Senate, years ago, to use a rolling cycle of three-day adjournments, each punctuated by a momentary “pro forma” session. The Senate’s three-day adjournments do not require the House’s consent, nor do they open the door to a president’s recess appointments; as the Court held in Noel Canning, “three days is too short a time” to trigger the Constitution’s recess-appointment clause.

This prohibition on adjournments—let’s call it the three-day-adjournment clause—contains no exception for adjournments that are forced by the president. Nor does the presidential-adjournment clause itself state that it is an exception to the three-day-adjournment clause. Both provisions exist in the same document.

And when two provisions exist in the same Constitution, neither purporting to trump the other, the basic rules of legal interpretation counsel strongly in favor of finding a way to give effect to both of them. As it happens, these are themes that Justice Scalia himself emphasized in his magnum opus, Reading Law: The Interpretation of Legal Texts. As Scalia and his coauthor, Bryan Garner (one of the nation’s leading leagal lexicologists), explained in their summary of the major rules of legal interpretation, “The provisions of a text should be interpreted in a way that renders them compatible, not contradictory.” This long-honored rule, they added, “is more categorical than most other canons of construction because it is invariably true that intelligent drafters do not contradict themselves.”