Sessions, Adjournments, and Recesses of Congress
Released: 2016-07-19T00:00:00

Introduction

Congress regulates the timing of its activities, both from day to day and over the two-year term for which it is elected, by rules governing how its sessions begin, continue, and end. These rules have a variety of procedural consequences, both for the flow of business in each chamber (such as for the or der of business and the consideration of measures) and for actions that involve relations between the chambers and with the executive branch (such as pocket vetoes and recess appointments). The purpose of this report is to describe the main features of the rules governing sessions of Congress, the means by which each chamber implements them, and their chief implications for the conduct of business.

Some of the pertinent regulations governing the timing of actions are prescribed by the Constitution, while others are established by the adopted rules of each chamber. Both kinds of regulation have come to be implemented in ways that depend not only on their explicit terms, but also on interpretations that have become accepted and practices that have become customary.

The basic terms this report uses to describe the timing of congressional activity are the session, adjournment, and recess. All three terms are used in relation both to the daily and the annual activities of Congress. While they are used in ways that are generally parallel in the daily and annual contexts, their precise meanings often differ in detail. This report will generally distinguish the two contexts, as appropriate, by speaking of "daily" sessions, adjournments, and recesses, and "annual" ones.

In either a daily or an annual context, generally speaking, a session is a period when a chamber is formally assembled as a body and can, in principle, engage in business. A session begins when a chamber convenes , or assembles, and ends when it adjourns . In the period between convening and adjournment, the chamber is said to be "in session." Once a chamber adjourns, it may be said to "stand adjourned," and until it reconvenes, it may be said to be "out of session," or "in adjournment." The period from a chamber's adjournment until its next convening is also often called "an adjournment."

The term recess , by contrast, is generally used to refer to a temporary suspension of a session, or a break within a session. For a break within the daily session, this term is a formal designation; for a break within an annual session, the term is only colloquial, but is in general use. In either context, a recess begins when the chamber recesses, or "goes into recess." For most purposes, it can be said that a recess, like an adjournment, ends when the chamber reconvenes. During the period between recessing and reconvening, the chamber is said to be "in recess" or to "stand in recess." When a chamber reconvenes from a recess, the suspended session resumes. For some purposes, nevertheless, it can be convenient to speak of a period between convening and recessing, or between reconvening and adjourning, or between recesses, also as "a session."

Although these basic explanations of the terms reflect common usage in the congressional context, they do not always take full account of the technical meanings that each term may bear in connection with specific chamber rules and precedents or with various interpretations of provisions of the Constitution. These technical meanings, moreover, may also vary from one formal context to another, or between the House and Senate. It is the intent of this report, throughout, to identify and distinguish the various senses, both formal and informal, in which the respective terms are being used.

This report first describes how pertinent rules and practices regulate the daily sessions of Congress and their adjournments and recesses, including discussion of the "legislative day." It then develops a corresponding discussion for the annual sessions of Congress, which addresses, among other things, the use of "pro forma sessions." The report clarifies certain situations in which terms may simultaneously apply in different ways in relation to the daily session and to the annual session. Finally, the report notes some of the most important implications of the occurrence of sessions, adjournments, and recesses in relation to such matters as presidential action on legislation, recess appointments by the President, the operation of statutory expedited procedures ("fast track" procedures), and "lame duck" (post-election) sessions.

Daily Sessions and Their Adjournments and Recesses

In context of the daily activities of Congress, each chamber convenes, or assembles, by being called to order by the chair; it is then commonly said to be "in session." Once a daily session is convened, a chamber remains in session, in this sense, until it adjourns for the day (or perhaps until it recesses for the day, although, as elaborated later, the formal effect of recessing is in some respects different).

Generally speaking, it is only when the chamber is in session in this sense that it can engage in official business. When a chamber is in session, in this sense, a presiding officer will be in the chair, Members may be present in their official capacities and participate in acts of the body, and the presence of a quorum may be required. In particular circumstances, however, either chamber may provide that, during a specific daily session, no business, or none of specified kinds, may occur.

In these terms, the period between the convening of a daily session and its adjournment or recess is necessarily a continuous period of time. Normally, on any day on which a chamber convenes, it adjourns (or recesses for the day) later on the same day. A calendar day on which a chamber convenes and then adjourns or recesses until a later calendar day may be called a "calendar day of session" or, more informally, simply a "day of session" for that chamber. In some Senate contexts, the term "session day" is used in a technical sense, especially, as described later, in connection with expedited or "fast track" procedures. The House, on the other hand, makes no use of this term in formal contexts.

It sometimes happens that a chamber convenes on one day and remains continuously in session, without adjourning or recessing, until the next calendar day (or even until some later day). Whether it might be appropriate to describe such a period as a single "day of session" or two (or more) could depend on the specific procedural context. If, on the other hand, a chamber were to be out of session at all points throughout an entire calendar day, it could not, in general, be appropriate to speak of that day as a "day of session" for that chamber.

Adjournment from Day to Day

An adjournment of the daily session of either chamber, more formally called an adjournment from day to day , terminates that daily session. More technically, an adjournment from day to day terminates a "legislative day," a concept that is more fully addressed below in the section on " Relation of "Days of Session" and Legislative Days ."

A chamber normally adjourns its daily session by adopting a motion to adjourn. The Senate sometimes adjourns, instead, by agreement to a unanimous consent request. In the practice of the House, however, adjournment by unanimous consent occurs only by declaration of the Speaker, and only "when no Member is available" to offer the motion. The Senate also may adjourn pursuant to a previous order setting the time at which adjournment will occur; the House generally does not use such a practice. Finally, Senate rules authorize the chair to declare a daily adjournment of the Senate if notified of an "imminent threat."

Once a chamber adjourns, it is "in adjournment." At that point, no daily session is in progress, which means, in general, that the chamber cannot conduct any official business as a body. A chamber may, however, adopt orders (while it is in session) providing that certain kinds of administrative business, such as the receipt of messages from the President or reports of committees, may occur during an adjournment.

When a chamber reconvenes after a daily adjournment, a new daily session begins. At that point, the daily order of business prescribed by chamber rules begins anew. In each chamber, for example, a new calendar day of session begins with a prayer by the Chaplain and the recitation of the Pledge of Allegiance. Any legislation that was under consideration and pending at the adjournment of the previous day's session is converted into the unfinished business of the new daily session.

During a daily session, either chamber may (by motion, resolution, or unanimous consent) adopt an order setting the time when it will reconvene after it adjourns. If a chamber adjourns its daily session in the absence of such an order, it reconvenes in accordance with a resolution specifying the normal schedule of the chamber that it typically adopts at the beginning of each new Congress.

Recess of the Daily Session

In addition to a daily adjournment, which terminates a daily session, a chamber may take a recess within its daily session. For example, a chamber may recess while awaiting the arrival of a specific item of business, or in order to convene in a joint meeting with the other chamber to hear an address by a foreign dignitary. Unlike a daily adjournment, a recess of the daily session does not terminate the daily session. Instead, when a chamber reconvenes after a recess, the same daily session resumes, and business continues from the point it had reached when the recess began.

A recess often occupies only a brief period during a day's session. A chamber, however, also may recess its daily session overnight or for a longer period. In some respects, the effects of an overnight recess may resemble those of a daily adjournment. When the Senate reconvenes after an overnight recess, for example, it observes the same ceremonies that are customary when reconvening after an adjournment, such as the prayer and Pledge of Allegiance, which is not done after a recess that takes place within a single calendar day. In the Senate, as well, it may in general appropriately be said that an overnight recess, like a daily adjournment, brings a calendar day of session to an end. When the House has reconvened after a recess overnight or longer, on the other hand, it has often omitted the ceremonies customary at the beginning of the next day's session, but has instead taken up the activity of the previous day from the point at which it had been suspended.

Formally, however, a recess, even one that lasts overnight, is unlike an adjournment, in that it does not procedurally terminate a legislative day . Whenever a chamber reconvenes after a daily recess, even if the recess began on a preceding calendar day, the previously existing legislative day is considered as resuming, and business continues from the point at which it stood when the recess began. In the terms being used here, as a result, a single legislative day may include more than one calendar day of session.

In context of the daily sessions of Congress, accordingly, being in recess is in strict contrast with being in adjournment: the House or Senate may either be recessed or adjourned, but it cannot be in both states at the same time. In the same way, once a chamber has recessed, it can be said to be "in recess," but it cannot formally be described as "in adjournment."

The House and Senate differ, however, in their interpretation of the relation between a daily session and a recess thereof. The House considers its daily session to continue during a recess: the mace remains in its place at the rostrum and certain forms of routine business may occur, such as the introduction of bills and the filing of reports by committees. The Senate, by contrast, permits actions of this kind during a recess only pursuant to an "order, adopted by unanimous consent." In this sense, although the House can be described as "in recess" between the time it recesses and the time it reconvenes, it cannot technically be described as "out of session" during that time. In the Senate, on the other hand, it might be considered proper to say that when the chamber is "in recess," it is "out of session."

Bringing About a Recess of the Daily Session

In both chambers, an order for a recess of the daily session will, in general, specify the time for reconvening; otherwise, it will most likely provide for reconvening "at the call of the chair." The means used to bring about a daily recess, however, differ between the two chambers. The Senate can bring about a daily recess by essentially the same means it may use for a daily adjournment. Senate rules give high precedence to a motion to recess, second only to the motion to adjourn. The Senate also can recess by unanimous consent, or pursuant to an order previously adopted by unanimous consent.

In the House, by contrast, a motion simply to recess is not privileged. Instead, House Rules allow a motion to authorize the Speaker to declare a recess, if the Speaker recognizes a Member for that motion. Although the House could recess by unanimous consent or pursuant to a previous order, it more usually proceeds under this Rule by giving the Speaker authorization in advance to declare the recess. House Rules accord the Speaker also the general authority to declare a recess "for a short time" subject to the call of the chair if no business is pending. Finally, House Rules authorize the Speaker to declare an "emergency recess" subject to the call of the chair when notified of an "imminent threat to [the] safety" of the House.

Except under the rule providing for an emergency recess, or in accordance with a previous order of the House itself, the House cannot recess while sitting as the Committee of the Whole. Instead, the Committee of the Whole would first have to rise, and the House would then recess using the procedures just described.

Relation of "Days of Session" and Legislative Days

The distinction between recesses and adjournments (of the daily session) underlies the concept of the "legislative day." Although the term "legislative day" is sometimes informally used to mean a calendar day on which a chamber is in session, this usage is, in most technical contexts, incorrect. In cases when the significant distinction is whether or not any daily session of a chamber occurred on a specific calendar day, it will be less ambiguous or misleading simply to speak of a calendar day of session of the chamber (or, more informally, as suggested earlier, of a "day of session").

A calendar day of session , in this sense , and a legislative day will not necessarily begin and terminate at the same point in time. A legislative day ends only when the chamber adjourns, and a new legislative day begins whenever the chamber reconvenes after an adjournment. When a chamber reconvenes after recessing, by contrast, no new legislative day begins, because no adjournment has intervened. If the chamber has recessed overnight, clearly a new calendar day of session begins, but still there is no new legislative day. As a result, a legislative day is not always the same as a "day of session," in either the House or Senate. By recessing overnight rather than adjourning, a chamber may continue a single legislative day into a second calendar day. By repeating this proceeding, a chamber may continue the same legislative day for many days, even for several weeks or months.

A chamber may make use of this proceeding in order to bring about desired procedural consequences. In the Senate, for example, rules prescribe that a "morning hour," during which several orders of routine "morning business" are supposed to take place, is to occur at the beginning of each new legislative day. For several decades late in the 20 th century, the Senate often remained in the same legislative day for extended periods by continuing to recess overnight (and even over weekends) rather than adjourning. By this means it avoided the possibility that the requirement for a "morning hour" could be used for dilatory purposes. The House, for various purposes, has also occasionally made use of such a proceeding. Nowadays, however, both chambers normally adjourn at the end of each daily session, which means that in practice, the calendar day and the legislative day usually coincide.

Conversely, instead of taking a short recess within a calendar day, a chamber may adjourn briefly and reconvene later on the same day. (For this purpose, before the chamber adjourns, it will agree to an order specifying the time for it to reconvene.) In this case, when the chamber reconvenes, a new legislative day begins, even though the calendar day remains the same, because an adjournment has intervened between the two periods of session. By this means, a chamber may convene for more than one legislative day on a single calendar day.

For instance, Senate Rules provide that when a measure is reported from committee, it must normally lie over for a period stated in legislative days before it can be taken up for consideration. Similarly, House Rules provide that a "special rule" (a resolution reported by the Committee on Rules, establishing a special order of business) may not be considered on the same day reported, except by a two-thirds' vote, and this requirement is interpreted in terms of the legislative day . Either chamber may more quickly satisfy a layover requirement defined in terms of legislative days by adjourning for a few minutes and immediately reconvening in a second legislative day on the same calendar day. In recent times, each chamber has used such a proceeding only occasionally.

Constitutional Restriction on Daily Adjournments and Recesses

In setting times for reconvening after a daily adjournment, both chambers are restricted by the Adjournments Clause of the Constitution, which requires that "Neither House, during the session of Congress, shall, without the Consent of the other, adjourn for more than three days." Under this provision, neither chamber, acting on its own sole authority, can authorize a daily adjournment to a day more than three full calendar days thereafter. In practice, Congress interprets this constitutional restriction on adjournments of the daily session as applicable also to daily recesses: a chamber may not arrange to stand in recess continuously for more than three full calendar days without having received the consent of the other.

When either chamber plans to adjourn or recess its daily session for three days or more , Congress has developed two means of satisfying this constitutional requirement. One is for the two chambers to adopt an "adjournment resolution," which is a concurrent resolution in which each gives the other permission to suspend its daily sessions for the desired period. Concurrent resolutions are appropriate for this purpose, because the concurrent resolution is a form of measure that requires the approval of both chambers, but is not presented to the President for approval.

The other means by which a chamber can effectively suspend its daily sessions for three days or more is for it to establish a schedule under which it meets at least every third day. The "three days" of such a break must include either the last day the chamber meets before the break, or the first day after the break. These meetings, held for the purpose of avoiding the necessity of obtaining the consent of the other to an adjournment or recess of three days or more, are known as "pro forma sessions." Both adjournment resolutions and pro forma sessions are discussed more fully in the following section on annual sessions.

Annual Sessions and Their Adjournments and Recesses

Essential points from the previous section may be summarized by saying that, in respect to its daily sessions, the House or Senate is in session whenever it is formally convened, but whenever it has adjourned , it is in adjournment , and is out of session , until it reconvenes. When a chamber has taken a recess , it is not in adjournment , but it is in recess (and the House, at least, cannot then for all purposes be described as out of session ). These concepts apply to annual sessions in ways that are largely analogous, but the different context leads to some differences in application.

Annual Sessions of Congress

Like a daily session, an annual session of either chamber begins when the session is formally convened and continues until it adjourns. The adjournment of an annual session is an adjournment sine die . In contemporary practice, the period between the convening of an annual session and an adjournment sine die typically encompasses a substantial portion of the year.

Regular Sessions

The Constitution regulates annual sessions by providing that "The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day." Even though this provision does not use the word "session," a "meeting" of Congress pursuant to its provisions is understood to constitute an annual session, and this session is understood to "begin" with its "assembly," or convening. A session of Congress, in this sense, involves annual sessions of both the House and the Senate that are concurrent (or, in general, at least roughly concurrent).

Each Congress is elected for a two-year term of office, so that the term of office of each Congress comprises two regular annual sessions. Each Congress is identified by its numerical sequence; for example, the Congress that first convened in January 2011 was the 112 th Congress. Each annual session is identified by its sequence within its own Congress; for example, the session that convened in January 2012 was the second session of the 112 th Congress.

For the first annual session of a new Congress, the Senate is normally convened by the Vice President or by its President pro tempore; the House of Representatives is normally convened by the Clerk of the previous House. Each chamber then engages in organizing activities, including the swearing-in of newly elected Members, the establishment of a quorum, and notification to the other branches. The House adopts its Rules and elects its officers; the Senate accomplishes any desired changes to its previous Rules and officers. These organizing actions are valid for the entire Congress, so that, in any later annual session of the same Congress, each chamber is normally convened by its existing presiding officers, and may then proceed at once to business.

Extraordinary Sessions

The President may call additional sessions of Congress, pursuant to his constitutional power "on extraordinary Occasions, [to] convene both Houses, or either of them." A session called by the President pursuant to this authority is known as an "extraordinary" session. An extraordinary session stands on the same basis as the regular sessions in respect of its beginning, recess, and adjournment. Accordingly, the basic observations offered in this report section may be extended to extraordinary sessions without material modification, and this report uses the term "annual session" (as contrasted with the "daily session") to include extraordinary as well as regular sessions.

Under contemporary conditions, the exercise of this presidential power has seldom proved necessary, for each regular annual session normally continues to meet throughout most of the year. If, however, the President were to call an extraordinary session after the sine die adjournment of one regular annual session and before the convening of the next, the presidentially called session would be a separate session of Congress, additional to the regular annual sessions that convene pursuant to the Constitution, and would receive a separate number within the regular sequence. For example, the second session of the 76 th Congress in 1939 was an extraordinary session, convened by the President after the sine die adjournment of the first session; as a result, the final regular session of the 76 th Congress, which convened in 1940, became the third session of that Congress. If, on the other hand, the President were to convene Congress at a time between the convening and sine die adjournment of a regular annual session, that same annual session would reconvene and continue to meet. For example, when President Truman called the 80 th Congress back in 1948, the second session of that Congress had not adjourned sine die; as a result, the assembly of Congress pursuant to the President's call represented a continuation of that second session.

Adjournment Sine Die

Just as a daily session continues until an adjournment from day to day, so an annual session (of either chamber) continues until an adjournment sine die (or "sine die adjournment"). In essence, an adjournment sine die simply means "an adjournment that ends an annual session." The literal meaning of "sine die" is "without day"; the implication is that the session is adjourning without having set any day for a subsequent meeting. When a chamber has established no date on which to return for any further meeting of the same annual session, the consequence is that it will not meet again until it assembles for its next annual session. Accordingly, an adjournment sine die necessarily brings an annual session to an end, and when Congress reconvenes after an adjournment sine die, a new annual session begins; for instance, the sine die adjournment of Congress in December 2009 terminated the first session of the 111 th Congress, and when Congress next assembled in January 2010, it thereby began the second session of the 111 th Congress.

In the sense applicable to the annual sessions of Congress, once either chamber convenes its session, it remains "in session" until it adjourns sine die. In the same sense, in the period between the sine die adjournment of one annual session and the convening of the next, the chamber can properly be said to be "in adjournment" and "out of session." Although this period is sometimes spoken of as a period of sine die adjournment, it is also referred to as a recess between sessions or an "intersession recess." The pertinence of this usage is clarified in the following section on "Recess of the Session " and in the later section on "Lame Duck Sessions ."

The requirement of the Adjournments Clause of the Constitution, that neither house adjourn for more than three days without the consent of the other, is understood to apply to adjournments sine die as well as to adjournments from day to day within a session. As a result, when Congress intends to adjourn its session sine die, it is the practice of the two chambers to adopt an adjournment resolution in the form of a concurrent resolution, by which each authorizes the other to adjourn sine die on a specified date (or within a specified range of dates). A concurrent resolution for this purpose is often called simply an "adjournment resolution." When the date specified in the adjournment resolution arrives, the actual sine die adjournment is then normally accomplished, in each chamber, by adoption of a motion (or, sometimes, a unanimous consent request) offered under authority of the adjournment resolution.

It is the practice of Congress to adopt a concurrent resolution providing for a sine die adjournment even when the time for the next session to convene is three days or less distant. The only circumstance under which a sine die adjournment of either chamber normally may occur without authority of a concurrent resolution arises when a chamber continues its annual session until the very point at which the next session is to convene. In these circumstances (which, under the modern congressional schedule, have been infrequent), the chair most often simply declares the sine die adjournment of the chamber when the time arrives. This action remains consistent with the Adjournments Clause because, although the chamber is adjourning without the consent of the other, it is not so adjourning "for more than three days."

The Senate has explicitly established that, except at the point when the following session is immediately going to convene, a daily adjournment never brings about a sine die adjournment de facto, even if it occurs within three days of the convening of the next session and the body has agreed not to meet again until that next session convenes. In such a case, the Senate treats its previous session as remaining in being until the point at which the chair declares the new session to have convened. It is not clear whether, in similar circumstances, the House might by daily adjournment achieve an adjournment sine die at any earlier point within three days.

"Recess of the Session"

As with the daily session, each chamber can also suspend its annual session for a period without adjourning it. A chamber may do so by adjourning (or recessing) its daily session to a time several days, or more, distant. When it does so, the annual session is not adjourned sine die, but only temporarily interrupted. When the chamber convenes for its next daily session following a temporary break of this kind, the annual session of the chamber that was already in progress continues in being. That is, the same numbered session of Congress (for example, the first session of the 112 th Congress) resumes.

Such a suspension of daily sessions in the course of the annual session is often referred to as a "recess," meaning, implicitly, a recess of the annual session. This usage generally parallels the use of "recess" in relation to the daily session, meaning, in both cases, a temporary break that does not terminate the session. When referring to a break within the annual session, however, the term "recess" does not serve as a parliamentary term of art, but instead simply as a convenient, and widely understood, form of reference. In this respect, usage in relation to the annual session contrasts with that in relation to the daily session.

The significance of a recess within an annual session of Congress depends on its length. As noted earlier, the Adjournments Clause of the Constitution prohibits either chamber from adjourning for more than three days without the consent of the other. This requirement is understood to apply not only to sine die adjournments, but also to periods within the annual session when the daily sessions of a chamber are suspended. In this way, the Adjournments Clause gives a distinct status to "recesses" of three days or more within an annual session. In conformity with the language of the clause, such periods are formally referred to as "adjournments for more than three days" within the annual session. More informally, they are commonly called "recesses of the session" or "intrasession recesses." This latter usage is convenient when highlighting the contrast with periods of sine die adjournment between sessions, which, as discussed in the preceding section on " Adjournment Sine Die ," are sometimes referred to as "intersession recesses."

As with sine die adjournments of a session, each chamber normally provides permission for the other to adjourn for three days or more by means of a concurrent resolution, adopted by both. Like the concurrent resolutions used for sine die adjournments, those used for adjournments for three days or more within the annual session may be referred to as "adjournment resolutions." In several respects, nevertheless, these concurrent resolutions function in ways that parallel the actions that provide for recesses of the daily session. Like a motion authorizing a daily recess, a concurrent resolution for a "recess of the session" normally establishes the date for each chamber to reconvene. When a chamber reconvenes after a daily recess, moreover, the business of the daily session resumes from the point at which it left off; similarly, when a chamber reconvenes after a "recess of the session," the business of the annual session resumes from the point it had reached when the daily sessions were suspended.

If the term "recess of the session" is restricted to adjournments of three days or more within a session, a "recess of the session" will then routinely be identifiable by the presence of a concurrent resolution authorizing each house to take the recess. This restriction, however, leaves no distinctive term for periods when the daily sessions are adjourned for fewer than three days. These briefer suspensions of daily sessions, too, may sometimes be spoken of as "recesses" in relation to the annual session.

These breaks of fewer than three days between daily sessions occur routinely. For example, it is common practice in each chamber to adjourn a daily session on Friday and not to reconvene until the following Tuesday, or to adjourn on Thursday and not reconvene until Monday. The practical effects of such a break are no different from those of a daily adjournment from one day to the next, or an overnight recess of the daily session. They have no significance in relation to the Adjournments Clause: not only do they not terminate the annual session, they do not even suspend it. A chamber may pursue such a schedule on its own authority, without the consent of the other, by any of the means specified in the section on daily adjournments.

Relation of Daily and Annual Sessions and Recesses

The preceding discussion shows that in many respects, the terms "recess" and "adjournment" are used, in relation to the annual session, in ways that parallel their use in relation to the daily session. An adjournment sine die terminates an annual session, just as an adjournment from day to day terminates a legislative day. A "recess of the session" (for more than three days, pursuant to a concurrent resolution) does not terminate an annual session, but only puts it in a state of suspension, just as a recess of the daily session does not terminate the legislative day, but only puts it into a state of suspension. A "recess of the session" stands in strict contrast with a sine die adjournment, just as a chamber cannot simultaneously be in adjournment and in recess with respect to its daily session. Finally, the annual session of a chamber remains continuous through both daily recesses and adjournments in a sense that corresponds to the continuity of the chamber's daily session when no daily recesses occur between convening and adjournment.

Certain differences between the two contexts also exist, however. When the daily session of a chamber is interrupted by no daily recesses, the chamber is actually present and capable of business during every moment from convening to adjournment. On the other hand, even if a chamber's annual session is interrupted by no recesses of the session, the chamber is not actually present and capable of doing business during every consecutive moment from its first convening until the sine die adjournment. Although the annual session remains continuous through daily recesses and adjournments, its actual capacity for business at any given moment, obviously, will be interrupted by these recesses and adjournments.

Finally, a chamber may initiate a "recess" of its annual session either with a recess or an adjournment of its daily session. The House normally recesses its annual session through an adjournment of its daily session. The Senate, on the other hand, has sometimes begun a recess of its annual session by taking a recess of daily session that continued throughout the "recess of the annual session." Under this practice, for example, the Senate may return in September in the same legislative day as when its recess of the annual session began in August. Conversely, a chamber can adjourn its annual session sine die only by also adjourning its last daily session of that annual session. A chamber cannot adjourn its annual session sine die while recessing its daily session.

Pro Forma Sessions

In the primary sense of the term, a pro forma session is considered to include any daily session which is held chiefly to prevent the occurrence of a "recess of the session" (that is, an adjournment for more than three days within an annual session) or forestalls a sine die adjournment. Either chamber may arrange for such sessions in order to avoid the need for a concurrent resolution to authorize a recess of the session or a sine die adjournment. In this sense, a pro forma session is a kind of daily session that has a specific effect in relation to the status of the annual session. The term "pro forma session" has no application as a description of any form of annual session itself.

Beyond this point, however, "pro forma session" (like "recess" in relation to the annual session) does not have a precise formal sense; it is not a parliamentary term of art, but one that has been used informally to describe sessions having various characteristics and performing various functions. The term is commonly used, in particular, to connote a short daily session of either chamber in which little or no business is transacted, and often also for any session for which no session of that chamber occurs on either the preceding or following day. There is no formal property or status that makes a daily session "pro forma"; a session may function for the same purposes whether or not it is described as "pro forma."

Each chamber often uses pro forma sessions as a means of extending a weekend break without having to provide for a "recess of the session." If a chamber adjourns from Thursday to Monday with the understanding that no business, or only routine business, will be transacted on the Monday, Members may feel enabled to remain in their constituencies until a later date. Nevertheless, no adjournment for three days or more within the session occurs, and no adjournment resolution is required. Under these circumstances, the significant feature that distinguishes the Monday, rather than the preceding Thursday, as the pro forma session is that it is the Monday on which no, or little, business is scheduled.

Both houses have also used pro forma sessions as a means of establishing a constituency work period without requiring a "recess of the session." A chamber may effectively establish a one-week constituency work period, for example, by arranging to meet only on Monday and Thursday of the week in question, and only for short sessions at which no business is to occur. In this way, none of the intervals between daily sessions need constitute an adjournment for three days or more, and no concurrent resolution would be necessary. In this case the Monday and Thursday sessions would clearly be identifiable as the pro forma sessions in all senses of the term.

By this understanding of "pro forma session," during the week of the constituency work period, the body would be "in pro forma session" only between the convening and adjournment of its daily session on the Monday, and then on the Thursday. It could not be properly described as "in pro forma session" during the week as a whole. This period might appropriately be described as "a period of pro forma sessions," or as including "a series of pro forma sessions." Such phrases could properly be understood as indicating that the pro forma sessions separated breaks of fewer than three days, and that without them, the chamber would have been in a "recess of the session" in the sense specified earlier.

Practical Applications

The considerations relative to recesses and adjournments of daily and annual sessions of Congress raised in the previous discussion have significant implications for several aspects of congressional practice, including

The continuity of business generally; Presidential vetoes; "Lame duck sessions" of Congress; Recess appointments; and Statutory expedited procedures ("fast track" procedures).

The following sections address considerations pertinent to each of these.

Continuity of Business

The earlier discussion of the daily session noted that legislative business actively pending on the floor at the time of a daily recess remains the pending business (in other words, remains continuous through the recess) and the business pending at a daily adjournment is thereby converted into unfinished business. Corresponding continuities apply in respect of the annual session.

The status of legislative business before Congress is not affected by a recess of the annual session (an adjournment for more than three days). Nor is it affected even by a sine die adjournment, as long as the following annual session is a further session of the same Congress (for example, the second session of the 111 th Congress). For example, bills introduced before a recess or adjournment of the session remain available for congressional action, and bills previously reported from committee remain on the Calendar of measures eligible for floor consideration. In the modern practice, legislative business dies only with the final sine die adjournment of the last annual session of a Congress, prior to the convening of the next annual session. When that next session convenes, it will be the first session of a newly elected Congress (for example, the first session of the 112 th Congress).

The practice of the Senate with respect to executive business (nominations and treaties) differs from the congressional treatment of legislative business. At the sine die adjournment of each annual session, any nominations still pending before the Senate are returned to the President, unless the next session is a further annual session of the same Congress and the Senate otherwise orders. During a recess of (the annual session of) the Senate, nominations retain their pendency, except that, if the recess is longer than 30 days, they are returned to the President unless the Senate otherwise orders. Treaties, by further contrast, remain before the Senate indefinitely until the Senate acts on them, unless the President withdraws them.

Presidential Action on Legislation

The Constitution provides that within 10 days after a bill passed by Congress is presented to the President (Sundays excepted), the President is either to sign it into law or return it to Congress with his objections (known as a "return veto"). If the President does neither, the bill becomes law at the expiration of the 10 days, "unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law" (known as a "pocket veto"). Contemporary practice leaves partially settled some questions about what form of adjournment prevents the return of a bill. Clearly, however, these questions relate to the annual session; an adjournment from day to day, much less a recess of the daily session, would hardly prevent the return of a bill.

In contemporary practice it is accepted that even if the allotted 10 days expire during a intrasession recess (that is, a recess for three days or more, pursuant to a concurrent resolution), the return of a bill is not prevented, for Congress has provided means by which it can receive bills returned during such a recess, and it is able to act to override the veto when it returns from the recess. It has become generally accepted, as well, that the same argument applies if the 10 days expire during a sine die adjournment between sessions of the same Congress.

The uncertainty that remains seems to be associated with the final sine die adjournment of a Congress. Even in this situation, it seems clear that if the 10 days expire after the expiration of the term of office of the Congress (on January 3 of an odd-numbered year), the President can pocket veto the bill. In this case, Congress has definitively "by their Adjournment prevent[ed]" the return of the bill, because the only Congress that could be in session on the date when the 10 days expire cannot be the one that passed the bill, but rather its successor. It is also accepted, however, that the President may sign a bill into law at any time within the allotted 10-day period, even if the date of signing falls after the expiration of the term of the Congress.

The remaining possibility is that the 10 days expire after the final sine die adjournment of the Congress, but before the expiration of its term of office. On the face of the matter, it would appear that a bill that remains without presidential action at that point would be pocket vetoed, inasmuch as, even if the President returned the measure to Congress, the Congress that enacted it would never thereafter be present to act on the veto. In contemporary practice, however, as noted earlier, resolutions providing for a sine die adjournment usually also authorize the leadership to reconvene Congress if circumstances require. (Also, of course, the President might exercise his constitutional power to convene an extraordinary session, although it seems unlikely that the President would exercise this power for the purpose of enabling Congress to override a veto.) If Congress were to reconvene under either authority, it could be argued that its previous adjournment had in no sense had the effect of preventing the President from returning a bill with his objections, and therefore that any bill remaining unsigned at the end of the applicable 10 days had not been pocket vetoed, but had become law. To address such uncertainties, Presidents sometimes return bills to Congress with their objections even after a sine die adjournment, accompanied by a memorandum asserting that the bill should be regarded as not having become law even if it had not been returned. This procedure has come to be known as a "protective return veto."

"Lame Duck Sessions"

A "lame duck session" of Congress is any portion of an annual session that occurs after the election for the next Congress has already taken place (in November of an even-numbered year), but before the following January 3, when the term of office of that newly elected Congress begins. During a lame duck session, accordingly, the Congress that meets is not the Congress that has just been elected, for its term of office has not yet begun, but instead the Congress that is coming to a close, because its term of office has not yet concluded, even though it still includes Members who are going to retire at the end of the Congress or have already been defeated for re-election.

Under contemporary conditions, a "lame duck session" is normally not a separate annual session of Congress, but simply the portion of the regular session already in being that occurs after the election day. It is not separately numbered as a session, but retains the number of the session that was previously meeting. The annual session then normally adjourns sine die some time in December, although it has occasionally extended right up until the term of office of the Congress expires at noon on January 3.

In recent times, when Congress has met in lame duck session, the post-election portion of the annual session has most often been separated from the pre-election portion by a recess of the session. The terms of the concurrent resolution of adjournment have typically provided for this recess to begin about a month before the election and extend until a few days or weeks thereafter. In some cases, however, one or both chambers have taken no recess of the session over the period of the election, but instead have held pro forma sessions during that period. In a few cases, as well, a chamber has taken a recess of the session during the election period, but has extended it at one or both ends by a series of pro forma sessions.

The authority to reconvene Congress if circumstances warrant, which concurrent resolutions for a sine die adjournment now routinely accord to congressional leadership, provides another means by which lame duck sessions may occur. Occasionally in recent decades, leadership has used this authority to reconvene Congress after the election for the following Congress has taken place. When this authority has been used, its use has usually been foreseen at the time the adjournment resolution was adopted. In these circumstances it remains true that the previously existing annual session of Congress is regarded as resuming; the previous adjournment is treated as not having been a sine die adjournment after all.

As explained earlier under " Annual Sessions of Congress ," if Congress were to recess its session during the election period, and the President exercised the constitutional authority to reconvene them in extraordinary session at a point after the election, but before the date set by the adjournment resolution, the previously existing session would still be regarded as resuming. On the other hand, if the President exercised the authority in the same way after Congress had adjourned its session sine die, the sine die adjournment would still be regarded as having occurred, and the reconvening would be treated as beginning a new, separately numbered, extraordinary session of Congress. Another way in which a lame duck session could constitute a new, separately numbered, annual session of Congress would be realized if Congress adjourned sine die before the election after having exercised its constitutional authority to enact a law providing for an additional session to convene on a date after the election. None of these three courses of action, however, has occurred since the current schedule of annual sessions went into effect in 1934, pursuant to the ratification of the 20 th Amendment.

Recess Appointments

The Recess Appointments Clause of the Constitution provides that "the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session." "Recess" and "Session" are clearly used here in a sense pertinent to the annual session, not the daily; the President could hardly avoid asking the Senate to confirm his nominations just by making appointments during a recess in the course of a daily session, or even during an overnight or weekend recess within the same legislative day. On the other hand, it has long been the general practice that for purposes of this clause, a "recess" can be either an intersession recess or an intrasession recess; that is, either a period of sine die adjournment or a recess of the session, as described earlier in the sections on " Adjournment Sine Die " and "Recess of the Session ." In earlier times, in fact, recess appointments normally occurred primarily during intersession recesses, partly because intrasession recesses were infrequent until more recently.

At issue, however, has been the extent to which the President can exercise this power during (1) the sine die adjournment of the Senate (that is, an intersession recess); (2) a "recess of the session" (that is, an "adjournment for more than three days" or "intrasession recess"); or (3) a period of pro forma sessions. In practice, it is clear that Presidents have frequently made recess appointments during intersession recesses of the Senate, and such action has seldom been challenged. At least since the 1920s, as well, Presidents have sometimes also made recess appointments during intrasession recesses of the Senate.

As the use of recess appointments evolved over time, it had sometimes been argued that "the Recess of the Senate," in the Recess Appointments Clause, should be understood to mean the same as the "adjourn[ment] for more than three days" mentioned in the Adjournments Clause. Under this argument, the recess appointment power would be available to the President during an annual session of the Senate at exactly those times when the Senate is in adjournment for three days or more pursuant to an adjournment resolution in accordance with the Adjournments Clause.

In practice, however, Presidents until very recently appear to have made recess appointments during intrasession recesses of the Senate only when the recess would be at least 10 days long. During intersession recesses of the Senate, in contrast, Presidents have occasionally made recess appointments even when fewer than three days intervened between the sine die adjournment of one session and the convening of the next, including one case when no appreciable interval occurred between the sine die adjournment and the convening of the next annual session.

These patterns suggested that the meaning of "recess" in the Recess Appointments Clause cannot simply be identified with that of "adjourn[ment] for more than three days" in the Adjournments Clause. Some observers argued, nevertheless, that it is only in the Adjournments Clause that the Constitution appears to offer any potential guidance on what may constitute a "recess" for purposes of the Recess Appointments Clause. On this basis, these observers suggested that the three-day standard of the Adjournments Clause constitutes at least a minimum length requisite for exercise of the recess appointment power, at least during an intrasession recess. In recent years, the Senate sometimes arranged to avoid the occurrence of any recess of the session for three days or more by holding a series of pro forma sessions, with the apparent intent, at least in part, of preventing the President from making recess appointments.

Pro forma sessions could achieve this effect, however, only on the presumption that the recess appointment power is not available in an adjournment or "recess" of the Senate for three days or less. In other words, unless "recess" is held to have the same meaning in context of the Recess Appointments Clause as "adjourn" in the Adjournments Clause, scheduling a series of pro forma sessions to occur every few days would seem irrelevant for purposes of preventing recess appointments. In January, 2012, the Office of Legal Counsel (OLC) issued a memorandum on recess appointments in which it did not reject this three-day standard but proposed that the President might determine the parameters of a "recess for recess appointment clause purposes, based on when the Senate is 'not in session' for the appointment of officers." Such determinations might be made based upon the President's perception of the availability of the Senate to "receive and act on nominations."

This view of the matter raised the question of whether the Senate might properly be described as being "in recess" for purposes of the Recess Appointments Clause even when holding pro forma sessions every few days. The January 2012 OLC opinion made a number of arguments in favor of this proposition, for example, that Senators and Senate sources sometimes refer to a period of pro forma sessions as a "recess," even though it is not a "recess of the session" in the sense specified earlier in this report, nor is any interval between pro forma sessions considered a "recess of the session" for purposes of the Adjournments Clause. The opinion argued that a "recess" sufficient for the purposes of the Recess Appointments Clause may in fact occur during such periods when the Senate predetermines that no business will occur during the pro forma sessions. By this argument, although pro forma sessions with no business transpiring may be sufficient to satisfy the Adjournments Clause, they are not sufficient to prevent a recess appointment. On some occasions, on the other hand, the Senate has agreed by unanimous consent to conduct business during a pro forma session, even though it had previously agreed, by unanimous consent, that no business would occur. The OLC opinion, nevertheless, asserted that "the President may properly rely on the public pronouncements that it will not conduct business ... regardless of whether the Senate has disregarded its own orders on prior occasions."

In 2014, however, the U.S. Supreme Court decided National Labor Relations Board (NLRB) v. Noel Canning , where it concluded that the President's recess appointments to the NLRB were constitutionally infirm on the grounds that the Senate was in an intrasession recess of only three days, a period of time it deemed too short to trigger the recess appointment power. While the Court concluded that, for purposes of the Recess Appointments Clause, "the Recess of the Senate" encompasses both inter- and intra-session recesses, it also declared that the President may make recess appointments during a recess of 10 days or more. It determined that (perhaps except in "very unusual circumstances") a recess of "more than 3 days but less than 10 days is presumptively too short to fall within the Clause." The validity of the recess appointments that were challenged in Noel Canning turned on whether pro forma sessions count as sessions of the Senate. The Court determined that they do, because the Senate retained "the capacity to transaction Senate business." Based on the Court's rationale in Noel Canning , the Senate may effectively utilize pro forma sessions to prevent the President from making recess appointments.

Statutory Expedited Procedures

Expedited procedures, also known as "fast track" procedures, or, more formally, "privileged procedures," are procedural rules established in statute to govern the action of either or both chambers on measures of a kind also specified by the statute. Many of the measures subject to statutory privileged procedures are resolutions either to approve or disapprove specific kinds of action proposed by the executive, but the measures covered also include congressional budget resolutions and reconciliation bills under the Congressional Budget Act, as well as bills to implement certain kinds of trade agreements.

Although these procedures are enacted into law, rather than being adopted as part of the standing rules of either chamber, they have the same force and effect as standing rules, but only with respect to the specified measures. They are designed to promote timely congressional action on the measures and, to this end, they tend to override the normal control of the leadership over the floor agenda and, in the Senate, the opportunity to block measures by filibuster. For example, they often provide for mandatory introduction of the measure, protect the opportunity for floor consideration, place time limits on consideration, and prohibit amendments.

Measuring Periods for Action and the Effect of Recesses of the Session

Many expedited procedure statutes make the procedures they establish available only during specified periods, often beginning with the initial proposal by the executive, or similarly limit specific stages in the process. The prescribed periods may be measured through any of several different ways of counting days, each of which is affected in a different way by the annual, and even the daily, recesses and adjournments of Congress. The ways of measuring time most often used in expedited procedures are calendar days , days of session , and days of continuous session .

A count of calendar days is the most straightforward, for in this case every day (including weekends and holidays) counts toward completion of the period, whether or not either chamber holds a daily session on that day, or even whether or not an annual session is ongoing.

Statutes generally define periods by days of session only for the Senate. The House, in general, does not make use of days of session as a technical term, and accordingly, the corresponding period for that chamber is usually defined by legislative days . Inasmuch as the House normally adjourns at the end of each daily session, this approach has the effect of treating both chambers in parallel ways. Periods defined in this way are, in any case, normally measured separately for each chamber, and in each case, only those days count on which a daily session of the chamber occurs. Days falling on a weekend, as a result, are usually not days of session for the Senate or legislative days for the House, and days falling while either chamber is in a recess of the session or a sine die adjournment are excluded from the count for that chamber as well. Provisions of the Congressional Review Act, for example, extend the opportunity for Congress to disapprove a proposed regulation through privileged procedures into a new session of Congress if Congress adjourns its previous session sine die before the 60 th session day in the Senate, or the 60 th legislative day in the House, after the regulation is submitted to Congress.

Periods measured in days of continuous session are usually defined by taking account simultaneously of the schedules of both chambers, counting each day unless either chamber is in a "recess of the session" or a sine die adjournment. By this standard, although days when either chamber is in a "recess of the session" will not count as days of continuous session, weekend days will count, even when neither chamber meets on those days (unless they are part of a "recess of the session").

Calendar days are not affected by whether either chamber holds pro forma sessions instead of taking a recess (or instead of adjourning sine die). The occurrence of pro forma sessions, on the other hand, does affect the count of days of session or legislative days, and also that of days of continuous session. For example, suppose that one chamber takes a "recess of the session" from Friday until the second following Monday, while the other chamber continues to hold its daily sessions. The nine days of the recess do not count as days of session (or legislative days) for the chamber that recessed its session, and they do not count as days of continuous session for either chamber. If, however, instead of taking this nine-day recess of the session, that same chamber meets for pro forma sessions on the intervening Tuesday and Friday, those two days will count as days of session (or legislative days) for that chamber. If, however, this period is to be measured in days of continuous session , the existence of these two pro forma sessions of the one chamber while the other continues to hold its daily sessions means that no "recess of the session" now occurs in either chamber. As a result, all nine days count, for both chambers, toward the completion of a period measured in days of continuous session. In this way, pro forma sessions tend to make days of continuous session elapse as fast as calendar days.

For either chamber, the use of a period counted in legislative days could enable it to extend the calendar length of the period by recessing its daily sessions rather than adjourning them, or to shorten it by adjourning (and reconvening) more than once on each calendar day of session. Occasionally, a statute has attempted to avoid this possibility by defining "legislative day," for its purposes, not in the technical sense explained earlier, but instead to mean what this report calls a "day of session."

Recesses and the Alignment of Periods for Action

For some purposes, an expedited procedure may operate more smoothly if its periods for action run concurrently, or at least approximately so, in both chambers. Whether they do so can depend not only on the standard by which the days of the periods are counted, but also by whether the periods begin at the same point for both chambers. For this purpose, for example, if a period is to begin when Congress receives a proposal from the executive, an expedited procedure may direct that the receipt must occur on a day when both chambers hold a daily session, or that it be deemed to occur on the next following day on which both chambers do so.

If a period measured in calendar days begins on the same day for both chambers, it will necessarily also end on the same day for both. The same is true for periods measured in days of continuous session, as usually defined, because the same days (those on which either chamber is in recess) are excluded from the count for both chambers. Using either of these methods of counting, however, a period may end on a day when both chambers are out of session. Moreover, much of the period could go by while one chamber is (or, under certain conditions, both are) in a recess of the session (or, in some cases, even in a sine die adjournment). These circumstances could limit the effective opportunity for a chamber to act under the expedited procedure.

A period measured in days of session, by contrast, cannot elapse except on days when the respective chamber is in session, and so cannot end except on such a day. The two chambers, however, seldom follow exactly the same schedule of daily sessions. As a result, if periods for action pursuant to an expedited procedure are measured in session days, then even if they begin on the same calendar day in both chambers, they are likely to end on different calendar days in each. In the second session of the 110 th Congress, for example, if an action period of 60 days of session began on the day the annual session convened, it would have started in both chambers on January 3, 2008, but the 60 th day of session would have occurred in the House on April 21, and in the Senate not until May 16.

Effect of Sine Die Adjournment

As just noted, if a period during which an expedited procedure is available is measured in calendar days, it may expire during a sine die adjournment, in which case the effective opportunity for Congress to make use of the procedure becomes truncated. In addition, some expedited procedure statutes explicitly provide that if the final adjournment sine die of a Congress occurs before the end of the period during which the expedited procedure is available, the period terminates with the sine die adjournment. Such provisions also truncate the effective opportunity for Congress to make use of the expedited procedure.

Also, as already noted, on the other hand, a period measured in days of session cannot expire during a sine die adjournment. In this case, any portion of the period remaining at the sine die adjournment could remain available for action under the expedited procedure in the following annual session. If the following session is the first of a new Congress, however, the remaining portion of the period may be too short to afford the incoming Congress a realistic opportunity to complete action, especially because the full lawmaking process under the expedited procedure would have to be accomplished de novo , beginning with the introduction of a new measure. Some statutes are framed in such a way that if a measure specified in the statute is reintroduced in the Congress following the one in which the President submitted the corresponding proposal to be disapproved or approved, it is not eligible for expedited consideration.

Some other expedited procedures deal with these possibilities by providing that if the final sine die adjournment of one Congress occurs before a prescribed period for action expires, a full new period for action becomes available from the start of the succeeding Congress. Some provide also that at that point, the proposal by the executive is deemed resubmitted. Some of these statutes extend these arrangements also to the beginning of a second or subsequent session of the same Congress, even though, in such cases, any measure subject to the expedited procedure that was previously introduced and remains without final action would still be available for action in the new session.

Similarly, when action periods measured in days of continuous session are broken by a sine die adjournment, a new Congress might commence with only a brief remainder of that action period remaining. To forestall this situation, many statutes that count action periods in this way stipulate that the expedited procedure is available during the "first period of [the stipulated number of] days of continuous session of Congress beginning after" the designated initiating event, and also provide that "continuity of session of Congress is broken … by an adjournment sine die" (or, sometimes, only by a final adjournment sine die of the Congress). Under these arrangements, if Congress adjourns sine die before a period of the required length has been completed, a new period of continuous session begins when the next session convenes, during which action under the expedited procedure may proceed de novo . It appears, nevertheless, that Congress has sometimes interpreted such provisions as applying only when the executive branch resubmits the underlying proposal.