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JGR/Presidential Power to Convene Congress
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135838930
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JGR/Presidential Power to Convene Congress
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Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
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Ronald Reagan Presidential Library Digital Library Collections This is a PDF of a folder from our textual collections. Collection: Roberts, John G.: Files Folder Title: JGR/Presidential Power to Convene Congress Box: 38 To see more digitized collections visit: https://reaganlibrary.gov/archives/digital-library To see all Ronald Reagan Presidential Library inventories visit: https://reaganlibrary.gov/document-collection Contact a reference archivist at: [email protected] Citation Guidelines: https://reaganlibrary.gov/citing National Archives Catalogue: https://catalog.archives.gov/ THE WHITE HOUSE WASHINGTON September 19, 1985 MEMORANDUM FOR FRED F. FIELDING FROM: JOHN G. ROBERTS JJR SUBJECT: Presidential Power to Convene Congress Dianna conveyed your request for a memorandum for the President outlining his authority to keep Congress in session or call Congress back from a recess or adjournment. So far as I can determine, the President has no authority to prevent Congress from adjourning. He has complete and unfettered authority, however, to convene either or both Houses at any time. Pursuant to Article II, Section 3, the President "may, on extraordinary occasions, convene both Houses, or either of them." I have found no cases construing this authority of the President. Hamilton in The Federalist No. 77 simply noted the existence of this power in a laundry list of miscellaneous Executive powers, stating that "no objection has been made to this class of authorities; nor could they possibly admit of any." He went on to state that a President may desire to convene simply the Senate, to obtain its consent to a treaty. The Constitutional language refers to "extraordinary occasions," but it is accepted that the President may convene Congress for whatever reasons are deemed sufficient by him. B. Schwartz, A Commentary on the Constitution of the United States, Vol. II, p. 23 (1977). Past practice bears this out. Presidents have convened Congress for such purposes as tariff revision, consideration of a ship subsidy bill, and to deal with a housing shortage. A list of the occasions on which the authority has been exercised is contained at Tab A. The last instance on which a President convened Congress was President Truman's action in 1948. The proclamation accomp- lishing this is at Tab B. I am aware of no Presidential authority to keep Congress in session. Article I, Section 7, Clause 3 specifically provides that adjournment resolutions need not be presented - 2 - to the President. The President may threaten to convene Congress if it adjourns, to prevent it from doing SO. Congress may, of course, convene and then promptly adjourn, but the President would seem to be just as free to reconvene Congress again and again. Attachment A COMPLETE LIST OF SPECIALLY CALLED SESSIONS OF CONGRESS AND WHY THEY WERE CALLED Date of Session General Reason Given 1797, May 15 Diplomatic crisis with France 1/ 1803, October 17 Louisiana Purchase 2/ 1807, October 26 British agression 37 1809, May 22 British overtures 4/ 1811, November 4 British. agression and trade problems 5/ 1813, May 24 War with Britain 6/ 1814, September 9 Further appropriations for War 7/ 1837, September 4 Banking crisis 8/ 1841, May 13 Condition of the revenue and finances 9/ 1856, August 21 Lack of Army appropriations 10/ 1861, July 4 Civil War 11/ 1877. October 15 Lack of Army appropriations 12/ 1879, March 18 Lack of Legislative, Executive, Judicial, and Army appropriations 13/ 1893, August 7 Financial crisis 14/ 1897, March 15 Cordition of the revenue 15/ 1903, November 9 Convention with Cuba 16/ 1909, March 15 Revision of the Dingley Tariff Act 17/ 1911, April 4 Canadian-American reciprocal tariff 18/ 10:3, April = riff revisie 1917, April 2 War with Germany 20/ 1919, May 19 Domestic problems after the War 21/ 1921, April 11 Domestic problems 22/ 1922, November 20 Ship subsidy bill 23/ 1929, April 15 "Farm relief" and "tariff changes" 24/ 1933, March 9 "Drastic" economies in government 25/ 1937, November 15 Recession in industrial production 26/ 1939, September 21 "Repeal the embargo provisions of. the neutrality law" 27/ *1947, November 17 Emergency aid to Europe 28/ *1948, July 26 Deal with inflation and housing shortage 29/ *President Truman called Congress back, but this was not counted as a session since Congress had not adjourned sine die. Title 3-The President Chapter 1-Proclamation DONE at the City of Washington this General formalities for the PROCLAMATION 2795 2nd day of July in the year of our Lord life to his k registrations pre- of the act authoriz- DISPLAY OF THE FLAG AT FORT MCHENRY nineteen hundred and forty- distinction 1 trade-marks used NATIONAL MONUMENT AND HISTORIC [SEAL] eight, and of the Independence his gloriou SHRINE of the United States of America will never ( foreign nations 0: the one hundred and seventy-second. as a great ates or with Indian WHEREAS the joint resolution of Con- a genuine the same. approved gress of June 22, 1942, entitled "Joint HARRY S. TRUMAN the Unite amended (15 U. C. Resolution to Codify and Emphasize fountries which ac- By the President achieved a Existing Rules and Customs Pertaining As a mai ial treatment in this to the Display and Use of the Flag of the G. C. MARSHALL the United States United States of America," as amended Secretary of State. ing's mem the natio: by the joint resolution of December 22, mast upo RE. I. HARRY S. 1942, 56 Stat. 1074, contains the following all forts a of the United States provisions: stations. a nd by virtue of the SEC. 2. (a) It is the universal custom to States. un me by the aforesaid display the flag only from sunrise to sunset WHEREAS the public interest requires taken plac do find and pro- on buildings and on stationary flagstaffs in that the Congress of the United States IN WIT Dect to trade-marks the open. However, the fiag may be dis- should be convened at twelve o'clock, played at night upon special occasions when unto set : ) um registered in the it is desired to produce a patriotic effect noon. on Monday, the twenty-sixth day of the Ur i Office which have of July, 1948. to receive such communi- affixed. val on or after Sep- has existed during SEC. 8. Any rule or custom pertaining to cation as may be made by the Executive: DONE a the display of the flag of the United States that date, because NOW. THEREFORE. I. HARRY B. 15th day ( of America. set forth herein, may be altered. g out of World War TRUMAN, President of the United States n modified. or repealed. or additional rules with or suspension of fa- of America. do hereby proclaim and de- [SEAL] e respect thereto may be prescribed, by the compliance with the clare that an extraordinary occasion re- Commander in Chief of the Army and Navy o malities prescribed of the United States, whenever he deems quires the Congress of the United States the one 1 ewal of such regis- it to be appropriate or desirable; and any to convene at the Capitol in the City of 12 of the aforesaid such alteration or additional rule shall be Washington on Monday. the twenty-sixth 1905. as amended set forth in a proclamation day of July, 1948. at twelve o'clock, noon, By the istrations within the and of which all persons who shall at that G. C. laid act of July 17. time be entitled to act as members Se WHEREAS Francis Scott Key. after accords substantially thereof are hereby required to take having anxiously watched from afar the this respect to trade- notice bombardment of Fort McHenry through- P 10 are citizens of the out the night of September 13. 1814. saw IN WITNESS WHEREOF, I have here- that accordingly the his country's flag still flying in the early unto set my hand and caused to be SUPPLEM ompliance with con- affixed the great seal of the United States. CEMBER morning of the following day: and thes prescribed with DONE at the city of Washington this CARRYI of registrations un- WHEREAS this stirring evidence of TARIFF the failure of the prolonged attack in- fifteenth day of July, in the year of our the aforesaid act of TRADE spired him to write the Star-Spangled Lord nineteen hundred and 5 amended, may take TIVELY tended with respect Banner. our national anthem: [SEAL] forty-eight, and of the Inde- : which expired after NOW, THEREFORE, I, HARRY S. pendence of the United States of WHEN America the one hundred and seventy- thority 0 land before June 30, TRUMAN. President of the United States Tariff A luding December 31, of America and Commander in Chief of third. tion 1 of HARRY S. TRUMAN the Army and Navy, do hereby proclaim Joint Re EREOF. I have here- that. as a perpetual symbol of our patri- By the President: and by se and caused the Seal otism. the flag of the United States shall G. C. MARSHALL 5. 1945 ICS of America to be hereafter be displayed at Fort McHenry Secretary of State. Stat. 12: National Monument and Historic Shrine ch. 269: N of Washington this period i at all times during the day and night. the year of our Lord PROCLAMATION 2797 having b except when the weather is inclement. hundred and forty- Act of J: of the Independence The rules and customs pertaining to DEATH OF GENERAL PERSHING three ye red States of America the display of the flag as set forth in the To the People of the United States: 944, ch nd seventy-second. said joint resolution are modified accord- It becomes my sad duty to announce U. S. C. ingly. officially the death of John J. Pershing. 1947 the HARRY S. TRUMAN IN WITNESS WHEREOF. I have here- General of the Armies of the United agreeme States, who died at Walter Reed Hospital Commo unto set my hand and caused the Seal L, in Washington, D. C., at 3:50 a. m. on the dom of of the United States of America to be affixed. 15th day of July, 1948. Brazil, ) State. THE WHITE HOUSE WASHINGTON September 19, 1985 INFORMATION MEMORANDUM FOR THE PRESIDENT FROM: FRED F. FIELDING SUBJECT: Presidential Power to Convene Congress I. SUMMARY As President you have constitutional authority to call Congress back into session or back from recess at any time for any purpose. You have no authority to prevent Congress from adjourning, but the threat of calling Congress back may suffice, as a practical matter, to prevent adjournment. II. DISCUSSION The Constitution provides that the President "may, on extraordinary occasions, convene both Houses, or either of them." Article II, Section 3. This authority has been exercised on numerous occasions throughout history. Presidents have convened Congress to deal with a broad range of matters, ranging from the Civil War and the Marshall Plan to ship subsidy legislation and an American-Canadian tariff. President Truman was the last President to convene Congress, in 1948, as part of his attack on the so-called "do nothing" Congress. The Constitution refers to "extraordinary occasions," but it is accepted that the President himself may judge what constitutes such an occasion to justify convening Congress. There are thus no restrictions on your authority to call Congress back into session or back from recess at whatever time you determine. You do not, however, have any legal authority to prevent Congress from adjourning. You may, of course, threaten to convene Congress if it adjourns without taking up matters you wish it to consider, and this threat may suffice to prevent Congress from adjourning. There is nothing to prevent Congress from adjourning promptly after reconvening in response to your call, but, by the same token, there is nothing to prevent you from calling Congress back again and again. FFF:JGR:aea 9/19/85 CC: FFFielding/JGRoberts/Subj/Chron To John Date 9/20 Time 4:50 4: WHILE YOU WERE OUT M Gary 04C Lawson of Phone 633-2044 Area Code Number Extension TELEPHONED X PLEASE CALL CALLED TO SEE YOU WILL CALL AGAIN X WANTS TO SEE YOU URGENT RETURNED YOUR CALL Message Operator Qea AMPAD EFFICIENCY 23-020 THE WHITE HOUSE WASHINGTON September 19, 1985 INFORMATION MEMORANDUM FOR THE PRESIDENT FROM: FRED F. FIELDING Orig. signed by FFF SUBJECT: Presidential Power to Convene Congress I. SUMMARY As President you have constitutional authority to call Congress back into session or back from recess at any time for any purpose. You have no authority to prevent Congress from adjourning, but the threat of calling Congress back may suffice, as a practical matter, to prevent adjournment. II. DISCUSSION The Constitution provides that the President "may, on extraordinary occasions, convene both Houses, or either of them." Article II, Section 3. This authority has been exercised on numerous occasions throughout history. Presidents have convened Congress to deal with a broad range of matters, ranging from the Civil War and the Marshall Plan to ship subsidy legislation and an American-Canadian tariff. President Truman was the last President to convene Congress, in 1948, as part of his attack on the so-called "do nothing" Congress. The Constitution refers to "extraordinary occasions," but it is accepted that the President himself may judge what constitutes such an occasion to justify convening Congress. There are thus no restrictions on your authority to call Congress back into session or back from recess at whatever time you determine. You do not, however, have any legal authority to prevent Congress from adjourning. You may, of course, threaten to convene Congress if it adjourns without taking up matters you wish it to consider, and this threat may suffice to prevent Congress from adjourning. There is nothing to prevent Congress from adjourning promptly after reconvening in response to your call, but, by the same token, there is nothing to prevent you from calling Congress back again and again. FFF:JGR:aea 9/19/85 CC: FFFielding/JGRoberts/Subj/Chron