The Heritage Guide to the Constitution


Article I, Section 5, Clause 4

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Dividing the legislative department into two chambers was one of the most important checks on the legislative power that the Framers devised. At the same time, the Framers believed that it was vital to the affairs of the nation that one house not be permitted to keep Congress as a whole from meeting and performing its functions. Under this clause, neither house can use its power to adjourn to another time or to another place in order to check the actions of the other legislative chamber. If the two houses cannot agree on a time of adjournment, then pursuant to Article II, Section 3, Clause 1 the President can “adjourn them to such Time as he shall think proper.” At the Virginia ratifying convention, James Monroe and George Mason worried that the clause might give the Senate the power to prevent House Members from returning home, but James Madison opined that the President’s power to resolve the dispute would prevent the Senate from keeping the House hostage to its will. Since the time of the First Congress, the two chambers have always reached agreement, and the President has never had to intervene.

At the Constitutional Convention, Rufus King raised a different concern. He worried that the two houses of Congress could actually move the seat of government merely by agreeing upon the place to which they would adjourn. The Convention decided that Congress could by law establish the seat of government (see Article I, Section 8, Clause 17), but the Framers left Congress the option of making temporary moves in the face of exigencies. Thus, during the yellow-fever outbreaks in the 1790s, the three departments moved from Philadelphia to Trenton. Of course, during the War of 1812, the government fled from Washington.

Congress has followed the text of the Adjournment Clause. Either house may adjourn or recess for up to three days on its own motion. Longer adjournments or recesses, or adjournments sine die, ending a session require the concurrent resolution of both houses. An adjournment of whatever length ends the “legislative day,” requiring much legislative business to be recommenced when the chamber reconvenes. In the Senate, introduced bills must lie over one legislative day before they can be considered. Recesses do not interrupt the legislative process.

A decision by Congress to adjourn is also part of each house’s power to “determine the Rules of its Proceedings” (Article I, Section 5, Clause 2). As Thomas Jefferson wrote in 1790, “Each house of Congress possesses this natural right of governing itself, and, consequently, of fixing its own times and places of meeting, so far as it has not been abridged by . . . the Constitution.” The Supreme Court earlier held in United States v. Ballin (1892) that when it comes to the constitutional power of each house to determine the rules of its proceedings, “[n]either do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The constitution empowers each house to determine its rules of proceedings.” Consequently, courts can be expected to defer to the political branches the question of whether or not Congress is adjourned or in session.

The issue of what constitutes an adjournment directly implicates the President’s power to “fill up all Vacancies that may happen during the Recess of the Senate” (Article II, Section 2, Clause 3). The validity of the President making recess appointments is covered in Article II, Section 2, Clause 3 (Recess Appointments Clause).

David F. Forte

Professor, Cleveland-Marshall College of Law