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August 04, 2008

Can President Bush Call Congress Back into Session?

Got an email this morning from AOSHQ reader Brennan:

People have been talking about the President calling Congress back to discuss gas prices for days now, using his powers in the Constitution. Rep. John Culberson (R-TX), however, Tweeted this last evening:

"We would ask the Pres to call Congress into special session but the Senate used a sneaky trick to prevent this - they are still in session"

Is that legally the situation? Is President Bush unable to call Congress back (even the House) because the Senate is technically still in session?

What he describes---Congress not "officially" ending its session so as to prevent the President from doing something---has occurred several times before. Most recently, this past December, Senate Democrats left one member in Washington during the holiday break, who would call the chamber to order for a few minutes each day in order to keep President Bush from making recess appointments. (Democrats claimed it would also keep him from using a pocket veto, but that was not the case.)

Assuming Rep. Culberson is right about the Senate being in session, I think he's wrong about calling a so-called "special session." The Constitution says that the President "may, on extraordinary Occasions, convene both houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper..." So whether the Senate is technically still in session or not, the President cannot be prevented from calling the House back. The House has never, in the history of the Republic, been called into extra session by itself. But there is no constitutional barrier that would prevent the President from issuing a Proclamation (the usual means of convening an extra session) calling them back.

Whether the Senate could be convened depends on whether it is in session. Culberson seems to think that Senate Democrats have technically kept that chamber in business. I'm not sure. By 48-40, the Senate voted to adjourn this past Thursday. It sounds to me like they're not in session. For what it's worth, the last time an extra session was called, President Truman reconvened the 80th Congress after it had adjourned to escape the heat of Washington in summer. Sounds familiar, no?

The real question is whether Congress has actually adjourned, or whether it has merely taken a "recess." If it's just a recess, I don't think the president can call them back.

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posted by Gabriel Malor at 11:51 AM

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