A willful president claiming expansive executive power clashes with the Senate, including over his unorthodox appointments. The president’s clever allies point to a constitutional clause he might invoke to unburden himself of the recalcitrant upper chamber.
Language tucked away in Article II, Section 3 says that if the House of Representatives and the Senate disagree “with Respect to the Time of Adjournment,” the president “may adjourn them to such Time as he shall think proper.”
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Voilà, say proponents: If the Senate goes too far in defying the president, he can summon the more pliant House to call for Congress to adjourn. When the Senate disagrees, the president can send them both packing. The president’s opponents, of course, warn of a constitutional crisis: “What principle of morality — what code of laws — what provision of the constitution,” one newspaper asks, would this president “not sweep away like a cobweb?”
This state of affairs could, of course, describe Washington in the aftermath of Donald Trump’s
2024 election. It actually describes Washington in 1834, during President Andrew Jackson’s second term, as his battle with the Senate over the Bank of the United States reached a crescendo.
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The 1834 debate over the scope of the president’s power to adjourn Congress has been largely forgotten. But it can shed light on a troubling constitutional clause that a bold or desperate president might try to exploit. The history also contains broader lessons for America’s current era of populist politics and constitutional hardball: that fears of a dictatorial presidency extend far back in the country’s history, and that any quasi-monarchical powers the Constitution
does afford American presidents are best left untested at their limits.
Unlike Trump, who
in 2020 explicitly threatened to adjourn Congress, Jackson never did so. But early in 1834, newspapers began to circulate rumors of a purported plot to bring the Senate to heel. “The
Kitchen Cabinet” — a derisive term invented for Jackson’s band of partisan political advisers — “have a scheme for shortening the session,” claimed a dispatch in the Morning Courier and New-York Enquirer.
“It has been the talk here for some days past that the President intends to prorogue Congress about the first of April, provided the House will agree to adjourn, and the Senate prove refractory,” said a letter in the Columbian Centinel. But the writer added that this was unlikely: Jackson “would not dare to play the part of a Cromwell and Napoleon.”
Some Jackson opponents weren’t so sure.
Congressional records show that on March 12, 1834, John Quincy Adams — the former president and Jackson foe who was then a representative from Massachusetts — warned in a speech of “whispers within this Hall” that “a disagreement is to be gotten up between the two Houses of Congress” so that the House could serve Jackson’s “royal prerogative.”
He expressed alarm that “a question of presidential power, which, until this memorable day, has slept undisturbed in the constitution” was now up for debate. Another representative, George McDuffie of South Carolina,
said in April: “We are not, indeed, without some very significant indications that this royal mandate will be executed.”
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The Globe, a paper close to Jackson’s administration, published a forceful defense of presidential adjournment power two days after Adams’s speech. It accused senators of threatening to stay in session until the Bank of the United States — which Jackson had vowed to destroy — was rechartered. Jackson could preempt this supposed senatorial extortion: The Constitution, the Globe insisted, empowers “the Executive, whenever the two Houses, on any occasion, cannot agree as to the time of their adjournment, to interpose and untie for them the Gordian knot.”
Though the Senate infuriated Jackson by
censuring him in March 1834, the two houses of Congress ended their session voluntarily without rechartering the bank. Jackson didn’t need to act against the Senate, but he probably thought the Globe was right that he had the constitutional power to do so. A
veto message on unrelated legislation in the last year of his presidency asserted “the contingent power of the Executive” to intervene in Congress’s adjournment decisions in the future. No president has ever exercised that power, and its scope remains unknown.
Jackson’s political opponents, the Whigs, advanced two interpretations that would limit the president’s adjournment prerogative. The first was that the prerogative applied only during extraordinary sessions of Congress
called into being by the president. After all, as Maryland Sen. Robert Henry Goldsborough noted
in an 1836 rebuttal to Jackson’s veto, the Constitution mentions adjournment “in the same breath” as it mentions the ability to convene special sessions. The president, says Article II, Section 3:
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.
That context arguably limits the president’s power, as one writer argued in May 1834 in the Richmond Whig & Public Advertiser. The adjournment prerogative, he observed, is triggered “‘in case of disagreement between them’ — between whom? The two Houses — what two Houses? The two Houses extraordinarily assembled — the only two Houses alluded to in the section.”
This narrower view of the clause made pragmatic as well as linguistic sense. Extraordinary sessions of Congress
were common during the first half of American history, when the national legislature was a part-time body. As an article in the National Gazette and Literary Register observed, “no great injury can result from permitting the President” to dismiss a Congress he himself convened.
But allowing a president to combine with one house of Congress to suppress the other in a regular session would undermine the legislative branch’s ability to check the executive. The Gazette piece claimed that if the president’s power applied even to ordinary sessions of Congress without limitation, “it would virtually establish a Dictatorship.”
The Globe insisted that the president’s adjournment prerogative applied to all congressional sessions, no ifs, ands or buts. The pro-Jackson editorialists even appealed to the Constitution’s drafting history to support their point. They noted that in an early draft of the Constitution, the president’s power to call special sessions and his power to adjourn Congress “were written separately, in distinct sentences.” It was only in a later draft that they were “condensed into one sentence.” That suggested that the president’s adjournment prerogative existed independently of his power to convene Congress, the Globe argued. The Framers ultimately linked the two powers together “from mere taste as to punctuation and euphony in the structure of the section.”
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