The President’s Authority to Convene the Senate

Article II, section 3 of the Constitution gives the President a broad grant of authonty to convene 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 em oran du m O pinion for the C ounsel to the P resident

The Constitution grants to the President the authority to “on extraordinary Occasions, convene both Houses, or either of them.” U.S. Const, 

art. II, § 3. This is stated as a broad grant of authority, and it has, accordingly, been exercised almost fifty times by various Presidents. Most 

recently, President Truman convened both Houses of Congress to consider the questions of inflation and foreign aid. However, many of those 

times the President convened only the Senate, often for the purpose of 

considering whether to give its advice and consent to Presidential nominees. The most recent example was in 1933 when President Hoover convened the Senate so that it could consider President Roosevelt’s nominees. To date, Presidents have used their special convening power only 

between sessions of Congress — either calling Congress into session earlier than scheduled or calling it back into session after the normal end-ofsession adjournment. However, the language and purpose of 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 adjournment of 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 convened President Washington submitted a substantial number of civil and 

military nominations. President Washington convened the Senate again on 

the day of his second inauguration, immediately following the adjournment 

of the Second Congress. During this period, President Washington submitted to the Senate three nominations. Id. at 138. After the end of the Third 

Congress, he convened the Senate to consider the Jay Treaty, during which 

time he also submitted to the Senate a number of nominations.

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The Senate was convened by the President many times throughout the 

19th century, frequently for the purpose of confirming nominations.1 In 

fact, Presidents uniformly convened the Senate for a special session that 

began on the day of 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 of its next session, which the 

Constitution sets as the first Monday of 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 we 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 of the recess or adjournment, that is, 

whether the adjournment is sine die, until a day certain, or until the 

majority leaders of the Congress find it in the public interest to reassemble the two Houses.”2

Both the text of the Constitution and the purpose of the provision indicate that the President’s constitutional power to convene either House 

extends to periods within sessions of 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 of the clause — namely, to 

ensure that the President can summon Congress to Washington so that 

Congress and the President together may face a matter of national 

import. As Justice Story said in his Commentaries on the Constitution:

The power to convene congress on extraordinary occasions is indispensable to the proper operations, and even 

safety of the government. Occasions may occur in the 

recess of congress requiring the government to ... provide 

for innumerable ... important exigencies ....

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

lSee, e.g., Proclamation No 51,11 Stat. 798 (1858) (President Buchanan); Proclamation No 53,11 Stat 

799 (1859) (same), Proclamation No. 1, 12 Stat. 1257 (1860) (same); Proclamation No. 18, 12 Stat. 1269 

(1863) (President Lincoln), Proclamation No. 26, 13 Stat 752 (1865) (same); Proclamation No. 10,14 Stat. 

821 (1867) (President Johnson), Proclamation No 1, 16 Stat. 1125 (1869) (President Grant); Proclamation 

No. 1, 17 Stat. 949 (1871) (same), Proclamation No 12, 18 Stat 855 (1875) (same); and Proclamation No. 

44, 32 Stat 2036 (1903) (President Roosevelt).

2 Memorandum for the Attorney General, from George T Washington, Assistant Solicitor General, Re:

Au tho rity o f the President to Call a Special Session o f the Congress at 1 (Oct 17, 1947)

3 In fact, the Constitution expressly contemplates indeterminate periods of actjouminent within a session. 

For instance, Article I states that “[n]either House, during the Session of 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 

power 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 of 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 of the 

time, to defeat the President’s constitutional power to convene Congress.

In sum, the Senate has been convened many times and for many reasons. 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 of Legal Counsel

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