    The President’s Authority to Convene the Senate

Article II, section 3 of the Constitution gives the President a broad grant of authonty to con­
   vene Congress or either House of Congress “on extraordinary occasions." The language
   and purpose of the clause make plain that the President may exercise this authority to
   convene the Senate during an intra-session break

                                                                                   July 26, 1989

          M e m o r a n d u m O p in io n   for the   C ounsel   to the   P r e s id e n t


   The Constitution grants to the President the authority to “on extraor­
dinary Occasions, convene both Houses, or either o f them.” U.S. Const,
art. II, § 3. This is stated as a broad grant o f authority, and it has, accord­
ingly, been exercised almost fifty times by various Presidents. Most
recently, President Truman convened both Houses o f Congress to con­
sider the questions o f inflation and foreign aid. However, many o f those
times the President convened only the Senate, often for the purpose o f
considering whether to give its advice and consent to Presidential nomi­
nees. The most recent example was in 1933 when President Hoover con­
vened the Senate so that it could consider President Roosevelt’s nomi­
nees. To date, Presidents have used their special convening power only
between sessions o f Congress — either calling Congress into session ear­
lier than scheduled or calling it back into session after the normal end-of-
session adjournment. However, the language and purpose o f the clause
make plain that the President has the power to convene Congress or
either House during an intra-session break.
   The first President to convene the Senate was President Washington,
who issued a “Summons” to the Senate immediately following the adjourn­
ment o f the First Congress. President Washington’s summons recited that
“[c]ertain matters touching the public good require[] that the Senate be
convened.” 1 Senate Executive Journal 79-84. While the Senate was con­
vened President Washington submitted a substantial number o f civil and
military nominations. President Washington convened the Senate again on
the day o f his second inauguration, immediately following the adjournment
o f the Second Congress. During this period, President Washington submit­
ted to the Senate three nominations. Id. at 138. After the end o f the Third
Congress, he convened the Senate to consider the Jay Treaty, during which
time he also submitted to the Senate a number o f nominations.

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   The Senate was convened by the President many times throughout the
 19th century, frequently for the purpose o f confirming nominations.1 In
fact, Presidents uniformly convened the Senate for a special session that
began on the day o f their successor’s inauguration. This was done because,
prior to the Twentieth Amendment, one Congress would come to a close
before the new President’s inauguration. Had the preceding President not
convened the Senate, it would not have been able to consider the new
President’s appointments until the start o f its next session, which the
Constitution sets as the first Monday o f the following December.
   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. President
Truman was advised, and w e agree, that “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 o f the recess or adjournment, that is,
whether the adjournment is sine die, until a day certain, or until the
majority leaders o f the Congress find it in the public interest to reassem­
ble the two Houses.”2
   Both the text o f the Constitution and the purpose o f the provision indi­
cate that the President’s constitutional power to convene either House
extends to periods within sessions o f Congress. His power is stated in the
broadest possible terms; it is not limited only to when Congress is not in
session.3 This is appropriate to the purposes o f the clause — namely, to
ensure that the President can summon Congress to Washington so that
Congress and the President together may face a matter o f national
import. As Justice Story said in his Commentaries on the Constitution :

              The pow er to convene congress on extraordinary occa­
           sions is indispensable to the proper operations, and even
           safety o f the government. Occasions may occur in the
           recess o f congress requiring the government to ... provide
           for innumerable ... important exigencies ....

Joseph Story, 3 Commentaries on the Constitution § 1556 (1833).

  l See, e.g., Proclamation N o 51,11 Stat. 798 (1858) (President Buchanan); Proclamation No 53,11 Stat
799 (1859) (sam e), Proclam ation No. 1, 12 Stat. 1257 (1860) (sam e); Proclamation No. 18, 12 Stat. 1269
(1863) (President Lincoln), Proclamation N o. 26, 13 Stat 752 (1865) (sam e); Proclamation No. 10,14 Stat.
821 (1867) (President Johnson), Proclamation N o 1, 16 Stat. 1125 (1869) (President Grant); Proclamation
No. 1, 17 Stat. 949 (1871) (sam e), Proclamation No 12, 18 Stat 855 (1875) (sam e); and Proclamation No.
44, 32 Stat 2036 (1903) (President Roosevelt).
  2Memorandum fo r the Attorney General, from George T Washington, Assistant Solicitor General, Re:
A u th ority o f the Presid en t to Call a Special Session o f the Congress at 1 (O ct 17, 1947)
  3In fact, the Constitution expressly contemplates indeterminate periods o f actjouminent within a session.
For instance, Article I states that “[n]either House, during the Session o f Congress, shall, without the
Consent o f the other, ac^joum for more than three days.” U.S. Const art. I, § 5 Thus, because the President’s
pow er to convene Congress is unlimited, it applies to times when Congress is adjourned but in session


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   Moreover, to contend the President lacks the power to convene when
Congress is in session but adjourned is to contend that the President may
not during time o f war, for example, summon Congress to Washington if
Congress chooses to remain absent. Such a contention would also allow
Congress, by remaining formally in session but adjourned for most o f the
time, to defeat the President’s constitutional power to convene Congress.
   In sum, the Senate has been convened many times and for many rea­
sons. It has considered both nominations and treaties during those times.
The Constitution places no limitation on when the President may convene
either or both Houses. We therefore conclude that the President has the
power to convene the Senate during the planned August adjournment.

                                            WILLIAM P. BARR
                                        Assistant Attorney General
                                          Office o f Legal Counsel




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