By Christian Quilon
Problem Statement
Congress has effectively eliminated the legally-mandated congressional summer recess through cancellations or pro forma sessions in order to subvert executive power and to diminish the campaigning power of their political opponents.
Background
Every year, both the Senate and the House of Representatives are mandated to take a scheduled recess during the summer to get away from legislative work on Capitol Hill to visit constituents, do any campaign-related work in election years, and spend time with their friends and family in their home districts or home states. This summer recess was originally a tradition dating back to 1791 after the 2nd Congress adjourned during the summer months for members of Congress to return to their other jobs and escape the lack of air-conditioning in the congressional chambers (Bomboy). For most sessions between then and the mid-twentieth century, the United States Congress adjourned during the summer months until this tradition was codified into law through the Legislative Reorganization Act of 1970 (Poliak). The text of the Legislative Reorganization Act of 1970 states that Congress shall move, “not later than July 31 of such year, by concurrent resolution adopted in each House by rollcall vote, for the adjournment of the two Houses from that Friday in August which occurs at least thirty days before the first Monday in September (Labor Day) of such year to the second day after Labor Day” (Legislative Reorganization Act of 1970). This, in effect, codified what has now become Congress’ summer recess.
In recent years, however, the concept of a summer recess for Congress has essentially been erased. Although the recess is mandated by law, congressional leadership has maintained extensive use of the pro forma session over the last few sessions of Congress. Through extensive research of the Congressional Record covering the period of the last week of July to the last week of August of each year over the past five years, the last five sessions of Congress did not formally pass a concurrent resolution in either the House or the Senate requiring both houses of Congress to take their scheduled summer recess. Although the House took a summer recess in 2016, the Senate has taken pro forma sessions every three days during the time allotted for the summer recess over the past five years.
Congressional leadership has erased the concept of a mandated summer recess for a few reasons. Pro forma sessions have been used to block presidential recess appointments; when President Obama tried to make recess appointments in 2012 between Senate pro forma sessions, the Supreme Court unanimously ruled in NLRB v. Noel Canning that the unilateral appointments were unconstitutional since the Senate was technically still in session (Liptak). In addition to limiting executive power, congressional leadership has severely limited the summer recess for political purposes. When Senate Majority Mitch McConnell decided to cancel the summer recess in 2018 under the guise of completing the Senate’s unfinished business of confirming executive appointees and passing appropriations legislation, it also prevented “vulnerable Democrats in red states” from campaigning during that year’s election season “while their challengers [had] free roam across their respective states” (Perticone). Giving congressional leadership the power to take away or shorten the legally-mandated summer recess permits them to prevent incumbents from an opposing party to campaign on equal terms with their respective opponents. Through the politicization of a measure that was meant to provide members of Congress with a much-needed break from the stress of Capitol Hill, the summer recess has now been transformed into a tool to break executive power and gain political strength.
Proposed Solutions
I call on this Committee to ban the use of pro forma sessions during the summer recess period as explicitly described in the Legislative Reorganization Act of 1970. Since the summer recess period is explicitly described in the Legislative Reorganization Act of 1970, a resolution banning the use of pro forma sessions during the proscribed period should be considered by this committee. This resolution would prohibit sessions from being convened during the summer recess in both houses of Congress that did not consider any official business. Thus, it would eliminate the use of a session that only goes through procedural formalities in order for a body to constitute itself as being in session for the purposes of obstructing executive power.
Although some would say that pro forma sessions in either chamber still have the capacity to conduct business during such sessions, the Senate has made a distinction between a pro forma session and a legislative session, indicating a difference between the two. According to its own “floor log,” when the Senate convened on December 23, 2011, it convened in legislative session rather than in pro forma session to pass a temporary payroll tax extension, suggesting that the Senate maintains that “a ‘pro forma’ session is one during which no business may be conducted” (Doerfler 1011). This distinction can be enough to say that pro forma sessions have no use than to hold hostage the presidential power to make recess appointments since no business is done during such sessions.
This prohibition of the pro forma session would correct an imbalance in the power distribution among the three branches of the federal government. The ability of Congress to use pro forma sessions to curtail any presidential power it doesn’t like gives them more dominance over the actions of the executive branch and “inhibit[s] the President from satisfying his duties as the chief executive officer … to ‘take Care that the Laws be faithfully executed’” (Kron 417). If the government is to continue functioning in an efficient and effective manner, the Congress should not have the unilateral ability to disrupt the operations of government by preventing the President from executing his constitutionally-mandated powers. For example, the Senate should not be able to keep Senate-confirmable positions vacant because it does not like the President’s nominees for those positions.
Some would argue that the use of pro forma sessions to block presidential recess appointments serves as a check against presidential circumvention of the Senate’s confirmation process. In theory, the President could bypass the Senate and appoint people who would otherwise be controversial nominees during the summer recess. What this possible concern fails to keep in mind is that recess appointments are temporary and “[expire] at the next session of Congress” (Wolf 2063). In addition to this limitation, there are further limitations that stretch beyond constitutional interpretation. In cases of executive abuse of power, public opinion in the electoral system and Congress’ power of impeachment remain effective checks against misuse of the presidential power to make recess appointments (Ibid 2102-2103). Taking away pro forma sessions wouldn’t take away the legislative check on executive power but would push for other courses of action for the legislative branch or the electorate to take to check executive abuse or misuse of power.
Furthermore, I call on this Committee to severely limit the ability of congressional leadership to delay and shorten the congressional summer recess for times of declared war or national emergency. This resolution would expressly prohibit the Speaker of the House and the Senate Majority Leader from canceling or delaying the summer recess mandated by the Legislative Reorganization Act of 1970. It would make a hard deadline for both chambers of Congress to adjourn pursuant to the express provisions of the aforementioned statute. The leadership of both chambers of Congress would have to meet this deadline and adjourn as the statute permits. The only exceptions expressly provided by this resolution would be in times of declared war or national emergency; this would allow Congress to still be in session as it deems necessary in these extraordinary circumstances. In ordinary situations, however, should Congress decide to ignore its own statute and continue to cancel or delay the recess, the President theoretically can force an adjournment of Congress under Article II, Section 3 of the Constitution, where he is given power to adjourn Congress “in Case of Disagreement between them, with Respect to the Time of Adjournment … as he shall think proper” (The Constitution of the United States: A Transcription). Although never used before, this express presidential power certainly remains a viable option should Congress persist in its attempts to nullify the summer recess.
Although the congressional summer recess is legally mandated, it is still subject to the scheduling controls of congressional leadership, who can decide to delay, shorten, or take away Congress’ summer recess. Choosing to delay the start of the summer recess can provide congressional leadership a way to weaken their opposition in the political realm. In 2018, Senate Majority Leader Mitch McConnell’s decision to keep the Senate in session for most of August kept Democrats who were vulnerable to losing reelection in red states from campaigning on equal terms with their Republican opponents (Perticone). Senator McConnell was able to strengthen the Republican Party’s political chances in that election year and prevent the opposition from freely obtaining equal time on the campaign trail. Severely limiting the ability of congressional leadership to delay, shorten, or completely take away the summer recess will protect both parties from having to sacrifice campaigning with legislating.
More recently, congressional leaders in 2020 reduced their summer recess for consideration of a bill to stimulate the economy during the coronavirus pandemic (Hansen). This represents a more correct use of the ability to delay and limit the summer recess. The ability of the congressional leadership to shorten or take away the summer recess should be limited to times when the United States remains in a state of war declared by Congress or times of national emergency. In the latter case, the time of national emergency is proclaimed by the President. This provision harkens back to the Legislative Reorganization Bill of 1946, whose original text states that Congress must adjourn no later than the last day in July “except in time of war or during a national emergency proclaimed by the President” (Legislative Reorganization Act of 1946). By severely limiting the situations in which this power can be used, congressional leaders are essentially powerless in delaying, shortening, or erasing the congressional summer recess.
Some would argue that Congress should be taking less time in congressional recess and should be staying in session to be more productive. However, there is evidence to suggest the opposite. In 1994, when the Senate delayed its summer recess until the end of August, so it could continue to work on a healthcare reform bill, the effort to reach consensus still failed despite the delayed recess, suggesting that Congress is not guaranteed to be more productive with longer working days (Waxman). In fact, when Congress knows that it is going to be in recess, especially during the summer, Congressional leadership in both chambers treats the days before recess as deadlines to pass numerous pieces of legislation. Susan Webb Yackee of the University of Michigan studied this trend in both chambers of Congress across a seventeen-year timespan and found that the number of roll call votes in the House increases by about 4.6 percent and the number of roll call votes in the Senate increases by about 2.7 percent for every week that Congress inches closer towards an intrasession recess, such as the summer recess (144). In addition, 46 percent of key votes in the House and 48 percent of key votes in the Senate were held one to two weeks before a major intrasession recess (Ibid 146). Not only is Congress willing to be more productive as they approach major recesses like the summer recess, but they are more willing to act on key pieces of legislation that have a major effect on the American people.
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