The White House has made it abundantly clear: Congress should be in session to work on fully reopening the Department of Homeland Security, which has been without funding since Feb. 14.
But here’s a question: Can President Donald Trump force Speaker Mike Johnson and Senate Majority Leader John Thune to bring lawmakers back?
This has already become an issue. Sen. Mike Lee (R-Utah) raised it over the weekend and pinned it to the top of his X page.
Of course, Trump has massive political leverage to force Congress to come back to town. Thune and Johnson tend to listen to the president. And we have to imagine that this will get resolved in a political realm before Trump uses some other power.
But the Constitution has a say here as well.
Article II, Section 3 of the Constitution says that the president “may, on extraordinary occasions, convene both Houses, or either of them.”
There has been a lot of debate about what this means and what, if any, limitations exist on a president’s ability to call Congress back into session.
In sum, the White House tends to view its power broadly, while Congress will see the executive branch’s authority as narrow as possible. Congressional prerogative matters here. The president shouldn’t be able to micromanage Congress’ schedule, institutionalists will say.
But there are several issues to consider.
In 1989, Bill Barr, then the assistant attorney general, penned the memo entitled “The President’s Authority to Convene the Senate.” The three-page Office of Legal Counsel memo argued that a president can convene Congress at any time for any reason regardless of the status of the adjournment, break or session.
Although Presidents have traditionally convened the Senate when Congress has been on intersession adjournment, the President’s power to “convene both Houses” is not limited to such circumstances. … “there is nothing in the Constitution to indicate, nor is there any basis for believing, that the President’s power to convene the Congress on extraordinary occasions depends on the precise nature of the recess or adjournment, that is, whether the adjournment is sine die, until a day certain, or until the majority leaders of the Congress find it in the public interest to reassemble the two Houses.”
The memo concludes by saying this bluntly: “The Constitution places no limitation on when the President may convene either or both Houses.”
OLC memos aren’t binding, but administrations typically use them as guidance.
In 1947, George T. Washington, then the assistant solicitor general, wrote that the “nature of the recess or adjournment” doesn’t matter. But if Congress “is not in session” and an “extraordinary occasion has arisen which requires that it be in session” is the operative test.
However, the Supreme Court has ruled that the Senate decides its own schedule. In a 2014 case dealing with former President Barack Obama’s appointments to the National Labor Relations Board, former Justice Stephen Breyer made clear that the Constitution has given the Senate “broad delegation of authority … to determine how and when to conduct its business.” Pro forma sessions count, he wrote.
Again, none of these situations is completely analogous. Both the House and Senate are still technically in session, holding pro forma sessions. Yet this is something you should keep an eye on over the coming days as this situation heats up.
