Sessions, Adjournments, and Recesses of
Congress
Richard S. Beth
Specialist on Congress and the Legislative Process
Jessica Tollestrup
Analyst on Congress and the Legislative Process
February 27, 2013
Congressional Research Service
7-5700
www.crs.gov
R42977
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Sessions, Adjournments, and Recesses of Congress
Summary
The House and Senate use the terms session, adjournment, and recess in both informal and more
formal ways, but the concepts apply in parallel ways to both the daily and the annual activities of
Congress. A session begins when the chamber convenes and ends when it adjourns. A recess, by
contrast, does not terminate a session, but only suspends it temporarily.
In context of the daily activities of Congress, any calendar day on which a chamber is in session
may be called a (calendar) “day of session.” A legislative day, by contrast, continues until the
chamber adjourns. A session that continues into a second calendar day without adjourning still
constitutes only one legislative day, but if a chamber adjourns, then reconvenes later on the same
day, the single day of session includes two legislative days. Conversely, if a chamber recesses and
then reconvenes on the same day, the same day of session and the same legislative day both
continue. Finally, when a chamber recesses overnight, instead of adjourning, although a new
calendar day of session begins when it reconvenes, the same legislative day continues.
A regular annual session of Congress begins when the two chambers convene in January,
pursuant to the Constitution (or to law). An annual session ends with an adjournment sine die.
Until the next annual session convenes, Congress is then in a period of sine die adjournment (or
“intersession recess”). If the President were to call an additional, “extraordinary” session, it
would be procedurally similar to a regular annual session.
The Constitution provides that neither chamber may adjourn for three days or more without the
consent of the other. The two houses consent to each other’s sine die adjournment by adopting a
concurrent resolution, called an “adjournment resolution.” They use a similar vehicle to allow
each other to suspend their daily sessions for three days or more without terminating their annual
session. Such a suspension is called a “recess of the session,” an intrasession recess, or, more
formally, an “adjournment for more than three days” within a session. To avoid the need for a
concurrent resolution, a chamber may hold pro forma sessions on such a schedule that no break of
three days or more occurs.
Legislation retains its status, and may continue to receive action, until the last session of a
Congress adjourns sine die. Nowadays, measures are “pocket vetoed” only when unsigned by the
President after a final adjournment sine die. Nominations, by contrast, will be returned to the
President if they remain pending whenever the Senate adjourns sine die or recesses its session for
more than 30 days, unless the body otherwise orders.
“Lame duck sessions” are periods when Congress is in session after election day, but before the
newly elected Congress takes office. Nowadays, they are not separate annual sessions, but
portions of the last regular annual session of a Congress, usually separated from the pre-election
portion by a recess of the session or by a period of pro forma sessions.
Recent Presidents have made recess appointments during intersession recesses (periods of sine
die adjournment), even very short ones, but have usually done so during intrasession recesses
only of 10 days or more. Pro forma sessions have sometimes been used to preclude recess
appointments by preventing a recess of the session. The Office of Legal Counsel has recently
argued that recess appointments are possible during a period that would be a recess of the session
if not for pro forma sessions. A 2013 U.S. Court of Appeals decision instead asserts that recess
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Sessions, Adjournments, and Recesses of Congress
appointments are allowable only during intrasession recesses, and only for vacancies that arose
during that recess.
Certain statutes provide that Congress may disapprove, or must approve, specified actions of the
executive branch by using expedited (“fast track”) procedures during specified periods. These
periods may be defined in calendar days, days of session, legislative days, or “days of continuous
session.” Days of continuous session include all calendar days except those on which either
chamber is in a “recess of the session.”
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Sessions, Adjournments, and Recesses of Congress
Contents
Introduction ...................................................................................................................................... 1
Daily Sessions and Their Adjournments and Recesses .................................................................... 2
Adjournment from Day to Day .................................................................................................. 3
Recess of the Daily Session ....................................................................................................... 4
Bringing About a Recess of the Daily Session .................................................................... 5
Relation of “Days of Session” and Legislative Days ................................................................ 6
Constitutional Restriction on Daily Adjournments and Recesses ............................................. 7
Annual Sessions and Their Adjournments and Recesses ................................................................. 8
Annual Sessions of Congress .................................................................................................... 8
Regular Sessions ................................................................................................................. 8
Extraordinary Sessions ........................................................................................................ 9
Adjournment Sine Die ............................................................................................................. 10
“Recess of the Session” ........................................................................................................... 10
Relation of Daily and Annual Sessions and Recesses ............................................................. 12
Pro Forma Sessions ................................................................................................................. 13
Practical Applications .................................................................................................................... 14
Continuity of Business ............................................................................................................ 14
Presidential Action on Legislation ........................................................................................... 15
“Lame Duck Sessions” ............................................................................................................ 16
Recess Appointments ............................................................................................................... 17
Statutory Expedited Procedures ............................................................................................... 20
Measuring Periods for Action and the Effect of Recesses of the Session ......................... 21
Recesses and the Alignment of Periods for Action ........................................................... 22
Effect of Sine Die Adjournment ........................................................................................ 23
Contacts
Author Contact Information........................................................................................................... 24
Acknowledgments ......................................................................................................................... 24
Key Policy Staff ............................................................................................................................. 24
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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 order 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).1 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.2
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.3 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
1 The President “pocket vetoes” a measure by leaving it unsigned when Congress has adjourned and so cannot override
his disapproval. See “Presidential Action on Legislation” in this report for a discussion of this issue. A recess
appointment is a temporary appointment by the President to fill a vacancy when the Senate is out of session. See
“Recess Appointments” in this report for a discussion of this issue.
2 See W[illia]m Holmes Brown, Charles W. Johnson, and John V. Sullivan, House Practice: A Guide to the Rules,
Precedents, and Practices of the House (Washington: GPO, 2011), [Hereinafter, House Practice] chap. 1
(“Adjournment”), §1, p. 2; U.S. Congress, Senate, Riddick’s Senate Procedure: Precedents and Practices, by Floyd M.
Riddick, Parliamentarian Emeritus, and Alan S. Frumin, Parliamentarian, rev. and ed. by Alan S. Frumin, 101st Cong.,
2nd sess., S.Doc. 101-28 (Washington: GPO, 1992) [Hereinafter, Riddick’s Senate Procedure] (“Adjournment”), pp. 1-
3.
3 In some contexts, the period between the adjournment of one annual session and the convening of the next also may
be referred to as a “recess,” as discussed under “Adjournment Sine Die,” ““Recess of the Session,” and “Recess
Appointments.”
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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
Session. A period when a chamber is formally assembled as a body and
pertinent rules and practices
can, in principle, engage in business.
regulate the daily sessions of
Adjournment. The means through which a session is ended.
Congress and their adjournments
and recesses, including
Recess. A temporary suspension of a session; a break within a session.
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.4
4 This account draws in part on observations offered by Elizabeth Rybicki, specialist on Congress and the Legislative
Process in the Government and Finance Division of the Congressional Research Service.
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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.5 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.6 The Senate also may adjourn
pursuant to a previous order setting the time at which adjournment will occur;7 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.”8
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.9 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.
5 In both the House and Senate, this motion is not subject to debate, amendment, or a motion to lay on the table. With
only narrow exceptions, the motion is in order at any point in the proceedings. House Practice, pp. 2-3; Riddick’s
Senate Procedure, p. 3. It is normally offered by a member or designee of the leadership of the majority party, which is
accorded the responsibility for arranging the schedule of the chamber, and is usually adopted by voice vote.
6 House Practice, chap. 1 (“Adjournment”), §5, p. 5.
7 Riddick’s Senate Procedure (“Adjournment”), p. 5.
8 S.Res. 296 (108th Cong.) established a standing order allowing the presiding officer in the Senate to declare a recess
or adjournment of less than three days when he or she has been notified of an “imminent threat.” This standing order
also authorizes the majority and minority leaders (or their designees), when the Senate is out of session, to modify any
order as to the time or place for reconvening after a recess or adjournment of less than three days when warranted by
“intervening circumstances.” The House addresses such situations through recesses, as explained in the next section.
9 This statement requires modification for the House of Representatives, as discussed in the following section on
“Recess of the Daily Session.”
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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.10
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.11
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,12 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.
10 House Practice, chap. 55 (“Unfinished Business”), pp. 901-905. Riddick’s Senate Procedure (“Unfinished
Business”), pp. 1370-1380.
11 See, for example, “Daily Hour of Meeting,” proceedings in the House, Congressional Record [daily ed.], vol. 157,
January 5, 2011, p. H28 (H.Res. 10), and “Fixing the Hour of Daily Meeting of the Senate,” proceedings in the Senate,
Congressional Record [daily ed.], vol. 157, January 5, 2011, p. S6 (S.Res. 3).
12 House Practice, chap. 36 (“Order of Business; Privileged Business”), §2, pp. 660-662; Riddick’s Senate Procedure
(“Prayer in the Senate”), p. 1004, (“Opening of a Daily Session of the Senate”), p. 1525.
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Sessions, Adjournments, and Recesses of Congress
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
mace13 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.14 The Senate, by contrast,
permits actions of this kind during a recess only pursuant to an “order, adopted by unanimous
consent.”15 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.16
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.17 Instead, House Rules
allow a motion to authorize the Speaker to declare a recess, if the Speaker recognizes a Member
for that motion.18 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.19
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.20
13 The mace is a symbol of parliamentary authority and is displayed while the House is meeting in daily session. For
further information, see CRS Report 98-396, Guide to Individuals Seated on the House Dais, by Valerie Heitshusen.
14 House Practice, chap. 45 (“Recess”), §1, p. 779.
15 Riddick’s Senate Procedure (“Recess”), p. 1082.
16 The motion for a recess in the Senate is not debatable, and may not be laid on the table, but it is amendable. Riddick’s
Senate Procedure (“Recess”), pp. 1080-1081, 1084.
17 Privileged measures and actions are those that may interrupt the regular order of business. For further information,
see CRS Report 95-563, The Legislative Process on the House Floor: An Introduction, by Christopher M. Davis.
18 House Rule XVI clause 4. This motion is neither debatable nor amendable. Constitution, Jefferson’s Manual, and
Rules of the House of Representatives, One Hundred Twelfth Congress, H.Doc. 111-157, 111th Cong., 2nd sess.,
[compiled by] John V. Sullivan, Parliamentarian (Washington: GPO, 2011), [hereinafter House Manual], §913.
19 House Rule I clause 12(a), House Manual, §638.
20 House Rule I clause 12(b), House Manual, §639. In addition, if emergency conditions arise during a recess or
adjournment, the Speaker may alter the time for the House to reconvene from that previously ordered. House Rule I
clause 12(c). See House Practice, chap. 1 (“Adjournment”), p. 2. For corresponding Senate practices, see note 8 and
(continued...)
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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.21
Instead, the Committee of the Whole would first have to rise, and the House would then recess
using the procedures just described.22
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 20th 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.23
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
(...continued)
text at that point.
21 The Committee of the Whole is a parliamentary device that affords the House broad opportunities for considering
amendments. For further information, see CRS Report RL32200, Debate, Motions, and Other Actions in the Committee
of the Whole, by Bill Heniff Jr. and Elizabeth Rybicki.
22 House Practice, chap. 45 (“Recess”), §1, p. 779.
23 House Practice, chap 1 (“Adjournment”), p. 3; Riddick’s Senate Procedure (“Adjournment”), p. 14. In current
practice, the Senate usually adjourns its daily session after first giving unanimous consent that, on the following day,
“morning hour” proceedings be dispensed with.
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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.
Legislative Day. A period beginning with the convening of a
For instance, Senate Rules provide that
chamber after an adjournment and ending with an
when a measure is reported from
adjournment.
committee, it must normally lie over for a
(Daily) Session. A period (on a calendar day) during which a
period stated in legislative days before it
chamber is in session.
can be taken up for consideration.
“Day of Session.” Informal term to describe a calendar day
Similarly, House Rules provide that a
during some part of which a chamber is in session.
“special rule” (a resolution reported by the
Committee on Rules, establishing a
Daily Adjournment (Adjournment from Day to Day). The means
through which a legislative day is terminated. If the chamber
special order of business) may not be
does not reconvene until the following calendar day, the
considered on the same day reported,
adjournment also terminates a “day of session.”
except by a two-thirds’ vote, and this
Daily Recess. The means through which a legislative day is
requirement is interpreted in terms of the
suspended. When the chamber reconvenes, the same
legislative day.24 Either chamber may
legislative day continues, even if the recess extended
more quickly satisfy a layover
overnight, and thereby terminated the previous “day of
requirement defined in terms of legislative
session.”
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.25
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.”26 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.27 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.28
24 House Rule XIII clause 6(a), House Manual, §857. See especially the second paragraph of the Parliamentarian’s
commentary.
25 Both chambers sometimes interpret references in the Rules simply to “days,” without qualification, as meaning
legislative days rather than calendar days (or “days of session”). Hinds, Asher C., Hinds’ Precedents of the House of
Representatives of the United States (Washington: GPO, 1907), vol. IV, §3192. Riddick’s Senate Procedure (“Day”),
pp. 712-715.
26 Article I, Section 5, clause 4.
27 According to the practice of the House, and apparently of the Senate as well, the three days must include either the
day on which the recess begins or the day on which it ends, but Sunday is excluded from the count. House Practice,
chap. 1 (“Adjournment”), §10, p. 8; Riddick’s Senate Procedure (“Day”), p. 714.
28 House Practice, chap. 1 (“Adjournment”), §13, pp. 11-12; Riddick’s Senate Procedure (“Adjournment”), pp. 17-21.
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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.29
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.”30 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).
29 For example, in the 111th Congress, the first session began on January 6 and ended on December 26, 2009; the
second session began on January 5 and ended on December 29, 2010.
30 Amendment XX, Section 2.
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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 112th 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 112th 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;31 the House of Representatives is normally convened
by the Clerk of the previous House.32 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.”33 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 76th 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 76th 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 80th Congress back in 1948, the second session of that Congress had not
31 The Vice President is the President of the Senate. The President pro tempore presides in the Vice President’s
absence.
32 House Practice, chap. 5 (“Assembly of Congress”), §4, p. 156. Senate Rule I paragraph 1, in U.S. Congress, Senate,
Senate Manual, Containing the Standing Rules, Laws, and Resolutions Affecting the Business of the United States
Senate, prepared by Matthew McGowan under the direction of Jean Parvin Bordewich, staff director, Committee on
Rules and Administration, 112th Cong., 1st sess., S.Doc. 112-1 (Washington: GPO, 2011), §1.
33 Article II, Section 3.
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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.34 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.35 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 111th Congress, and when
Congress next assembled in January 2010, it thereby began the second session of the 111th
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.”
“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 112th 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,
34 In congressional usage, the phrase is usually pronounced “sign a dye.”
35 Under contemporary conditions, Congress normally adjourns its annual sessions subject to contingent authority
granted to some group of leaders of the two chambers to reconvene them “whenever the public interest shall warrant it”
(or equivalent language). House Practice, chap. 1 (“Adjournment”), §10, p. 9. Some considerations generated by this
mode of proceeding are discussed in the sections on “Presidential Action on Legislation” and on ““Lame Duck
Sessions,” below.
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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.36 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.37
36 House Practice, chap. 1 (“Adjournment”), part B, p. 8.
37 These conclusions follow from the counting conventions described in note 27, including the exclusion of Sundays
from the count.
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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.
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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.38 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.39
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
Annual Session. A period that begins when the chamber
functions. The term is commonly used, in
first formally convenes after a sine die adjournment and
particular, to connote a short daily session of
lasts until it next adjourns sine die.
either chamber in which little or no business is
Adjournment Sine Die. The means through which an annual
transacted, and often also for any session for
session is terminated.
which no session of that chamber occurs on
Recess of the Annual Session. The means through which an
either the preceding or following day.40 There
annual session is suspended for three calendar days or
is no formal property or status that makes a
more in one or both chambers through a concurrent
daily session “pro forma”; a session may
resolution. Such annual recesses may be initiated by an
function for the same purposes whether or not
adjournment or recess of the daily session. When the
it is described as “pro forma.”
chamber reconvenes, the same annual session continues.
Pro Forma Session. A daily session whose existence
Each chamber often uses pro forma sessions
prevents the occurrence of a recess of the annual session
as a means of extending a weekend break
or forestal s a sine die adjournment.
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
38 In earlier times, Congress has used pro forma sessions in ways that may indicate that the avoidance of “recesses of
the session,” is not an essential requisite of such sessions. In the fall of both 1940 and 1942, for example, both houses
met in pro forma sessions during a period spanning the election, thereby avoiding the need to provide for a “recess of
the session.” Circumstances attendant in cases of this type suggest that the purpose of instituting these periods of pro
forma session may not have been to avoid “recesses of the session” but, rather, to sustain the existing session of
Congress in order to avoid having to adjourn sine die. By this means, Congress may have intended to ensure its
availability to act if circumstances should so require, whether or not the President might choose to exercise his
constitutional power to convene Congress in extraordinary session. In modern times this approach might be found
unnecessary, for the contingent reconvening authority usual in contemporary adjournment resolutions tends to render
periodic pro forma sessions unnecessary for this purpose.
39 The question is sometimes raised whether pro forma sessions during which no business occurs count as meeting the
requirements of the Adjournments Clause. This clause, however, sets no conditions about the occurrence of business,
but only about the occurrence of the session itself. Instead, the reason for holding pro forma sessions at all is precisely
that they are intended to satisfy the formal requirement for meetings of a chamber in the absence of an adjournment
resolution. For further information, see the section on ““Lame Duck Sessions.”
40 “Pro forma” means “for the sake of form”; on this understanding, the formality being satisfied would be the
requirement of the Adjournments Clause that each house convene a daily session at least once every three days unless
the consent of the other is obtained. If a session is being held principally to fulfill this requirement, however, there may
usually be little reason for transacting business during its course, which suggests that these connotations of the term
might be derivative from its primary meaning.
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to remain in their constituencies until a later date.41 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
41 The adjournment from Thursday to Monday counts as three days because Sunday is not counted. See footnote 27.
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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 111th 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 112th 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.42 Treaties, by further contrast, remain before the Senate indefinitely until
the Senate acts on them, unless the President withdraws them.43
Presidential Action on Legislation
The Constitution44 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”).45 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.46
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
42 Senate Rule XXXI, paragraph 6, Senate Manual, §31.6.
43 Senate Rule XXX, Senate Manual, §30.
44 Article I, Section 7.
45 For further information on possible presidential action, see CRS Report RS22188, Regular Vetoes and Pocket
Vetoes: An Overview, by Kevin R. Kosar.
46 For a general overview of these issues, see U.S. Congress, Senate, The Constitution of the United States of America:
Analysis and Interpretation, S.Doc. 108-17, 108th Cong., 2nd sess., Article 1, Section 7, clauses 1-3, prepared by the
Congressional Research Service, Library of Congress, Johnny H. Killian, George A. Costello, Kenneth R. Thomas, co-
editors (Washington: GPO, 2004).
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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.47
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.48
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 the Congress if circumstances require.49 (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
47 See Wright v. United States, 302 U.S. 583 (1938), Kennedy v. Sampson, 511 F.2nd 430 (D.C. Cir. 1979).
48 For a further discussion of these areas of uncertainty, see archived CRS Report RL 30909, The Pocket Veto: Its
Current Status, by Louis Fisher (available from Jessica Tollestrup).
49 See footnote 35.
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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.50 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.51 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 20th Amendment.52
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.”53 “Recess” and “Session” are
50 See footnote 35.
51 Amendment XX, Section 2.
52 For further information on the form of election breaks and lame duck sessions, see CRS Report RL33677, Lame
Duck Sessions of Congress, 1935-2010 (74th-111th Congresses), by Richard S. Beth and Jessica Tollestrup.
53 Article II, Section 2, clause 3.
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Sessions, Adjournments, and Recesses of Congress
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.54 At least since the 1920s, as well, Presidents have sometimes also made recess
appointments during intrasession recesses of the Senate. Beyond these circumstances, areas of
uncertainty remain.
It has 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.55
At least until very recently, however, Presidents appear to have made recess appointments during
intrasession recesses of the Senate only when the recess would be at least 10 days long.56 During
intersession recesses of the Senate, on the other hand, 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.57
54 Comprehensive consideration of the intent of the Recess Appointments Clause and practice thereunder is beyond the
scope of this report. For discussion of these issues, see CRS Report RL33009, Recess Appointments: A Legal Overview,
by Vivian S. Chu, and CRS Report R42323, President Obama’s January 4, 2012, Recess Appointments: Legal Issues,
by David H. Carpenter et al.
55 Executive Power—Recess Appointments, 33 Op. Att’y Gen. 20, 25 (1921); Memorandum of Points and Authorities
in Support of Defendants’ Opposition to Plaintiffs’ Motion for Partial Summary Judgment, at 24-6, Mackie v. Clinton,
827 F. Supp. 56 (D.D.C. 1993), vacated as moot, 10 F.3d 13 (D.C. Cir. 1993). See also footnote 13 in Lawfulness of
Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. Off. Legal
Counsel (January 6, 2012), available at http://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf (last visited
January 18, 2012) (hereinafter “OLC 2012 opinion”).
56 CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by Henry B. Hogue. Such intersession
appointments have occurred regardless of whether the concurrent resolution to adjourn to a date certain provided
contingent authority to reconvene prior to that date (OLC 2012 opinion, p. 21).
57 At the moment when the first session of the 58th Congress ended at noon on December 7, 1903, and the second
session immediately began thereafter, President Theodore Roosevelt announced the recess appointment of over 160
officials. See Henry B. Hogue and Richard S. Beth, “Recess Appointments During Short Intervals Between Sessions
and Historical Efforts to Prevent Recess Appointments through Congressional Scheduling,” CRS Congressional
Distribution Memorandum, June 8, 1012, available from its authors.
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These patterns suggest 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 have 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 have 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.58 In recent
years, the Senate has 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.59
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 fewer than
three days. In other words, unless “recess” is held to mean the same thing in context of the Recess
Appointments Clause as “adjourn” in the Adjournments Clause, the use of periods of pro forma
session would seem irrelevant to the purpose of preventing recess appointments. The most recent
memorandum of the Office of Legal Counsel (OLC) on recess appointments, from January 2012,
does not reject this three-day standard, but proposes 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.”60 Such determinations might be made based upon the
President’s perception of the availability of the Senate to “receive and act on nominations.”61
This view of the matter raises the question of whether, during a period of pro forma sessions, the
Senate might properly be described as being “in recess” for purposes of the Recess Appointments
Clause, even though no interval between pro forma sessions is a “recess of the session” for the
purposes of the Adjournments Clause. The January 2012 OLC opinion makes 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,”62 even though it is not a “recess of the
session” in the sense specified earlier in this report. This opinion argues 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.63 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.64 The OLC opinion, nevertheless, asserts that “the President may properly
58 See, for example, Memorandum of Points and Authorities in Support of Defendants’ Opposition to Plaintiffs’ Motion
for Partial Summary Judgment, at 24-6, Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993), vacated as moot, 10 F.3d 13
(D.C. Cir. 1993), cited in CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by Henry B.
Hogue.
59 Sometimes this has occurred due to the wishes of the House. See CRS Report RS21308, Recess Appointments:
Frequently Asked Questions, by Henry B. Hogue.
60 OLC 2012 opinion, p. 13; see pp. 13-24.
61 Ibid, p. 1.
62 Ibid., p. 3.
63 See ibid., pp. 9-18, for an explanation of this rationale.
64 See also footnote 42.
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rely on the public pronouncements that it will not conduct business ... regardless of whether the
Senate has disregarded its own orders on prior occasions.”65
A 2013 U.S. Court of Appeals decision on the subject of recess appointments, however, takes a
contrary approach.66 According to this decision, the term “recess” in the Recess Appointments
Clause does not cover recesses within a session at all, whether of more or fewer than three days,
but refers only to a recess between sessions; that is, a period of sine die adjournment.67
Consequently, recess appointments may occur only between a sine die adjournment of the annual
session and the convening of the next session. In addition, the Court of Appeals held that the only
vacancies eligible for recess appointments are those that arose during the same intersession
recess.68 Under the principles enunciated in this decision, in instances where the Senate does not
adjourn sine die, and instead continues the annual session until the time when the next annual
session must constitutionally convene, no opportunity for recess appointments would arise at
all.69
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.70 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.71
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.72 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.73 For example,
65 Ibid., p. 21. The opinion further asserts that “even absent a Senate pronouncement that it will not conduct business,
there may be circumstances in which the President could properly conclude that the body is not available to provide
advice and consent for a sufficient period to support the use of his recess appointment power.” What such
circumstances might be is not enumerated.
66 Canning v. NLRB, No. 12-1225, 2013 U.S. App. LEXIS 1659 (D.C. Cir. January 25, 2013).
67 Ibid., pp. 17-18.
68 Ibid., p. 31.
69 Ibid., p. 40. For a further discussion of the implications of this decision, see CRS Report WSLG379, DC Circuit
Rules President Obama’s Recess Appointments Unconstitutional, by David H. Carpenter.
70 For general information on expedited procedures, see CRS Report RS20234, Expedited or “Fast-Track” Legislative
Procedures, by Christopher M. Davis.
71 See, for example, reconciliation in the Congressional Budget Act (P.L. 93-344, Section 310). For further information
on reconciliation, see CRS Report RL33030, The Budget Reconciliation Process: House and Senate Procedures, by
Robert Keith and Bill Heniff Jr. On trade agreement implementing bills, see the Trade Act of 1974 (19 U.S.C. 2191).
72 For this reason, pursuant to Article 1 Section 5 of the Constitution, which gives each chamber the power to determine
the rules of its proceedings, the House and Senate may unilaterally modify, suspend, or waive these procedures without
the concurrence of the other chamber or the President.
73 For a further discussion of the potential advantages of expedited procedures, see CRS Report 98-888, “Fast-Track”
or Expedited Procedures: Their Purposes, Elements, and Implications, by Christopher M.
(continued...)
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they often provide for mandatory introduction of the measure, protect the opportunity for floor
consideration, place time limits on consideration, and prohibit amendments.74
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.75 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,76 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 60th session day in the Senate, or the 60th
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
(...continued)
Davishttp://www.crs.gov/pages/Reports.aspx?PRODCODE=98-888.
74 For a further discussion of such features, see CRS Report RL30599, Expedited Procedures in the House: Variations
Enacted Into Law, by Christopher M. Davis.
75 For example, the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101) makes it in order for the Speaker to recognize
a House Member to call up a resolution of approval once it has been on the calendar for five legislative days.
76 5 U.S.C. 801(d)(1) through 801(d)(3).
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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
Calendar Days. Every calendar day (including weekends
action run concurrently, or at least
and holidays) counts toward completion of the period,
approximately so, in both chambers. Whether
whether or not either chamber holds a daily session on
that day, or even whether or not an annual session is
they do so can depend not only on the
ongoing.
standard by which the days of the periods are
Days of Continuous Session. Every calendar day of an
counted, but also by whether the periods begin
annual session counts unless either chamber is in a
at the same point for both chambers. For this
“recess of the session” (of three days or more) or a sine
purpose, for example, if a period is to begin
die adjournment. By this standard, weekend days and
when Congress receives a proposal from the
holidays will count, even when neither chamber meets
executive, an expedited procedure may direct
on those days, unless they are part of a “recess of the
session.”
that the receipt must occur on a day when both
chambers hold a daily session, or that it be
Days of Session. Each chamber keeps a separate count of
deemed to occur on the next following day on
days, which includes only those days on which a daily
session of the respective chamber occurs. Days falling on
which both chambers do so.
a weekend or holiday, as a result, are usual y not days of
session, and days falling while the chamber is in a recess
If a period measured in calendar days begins
of the session or a sine die adjournment are excluded as
on the same day for both chambers, it will
well.
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.
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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 110th 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 60th 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.77 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.78
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.79
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]
77 See, for example, the Defense Base Closure and Realignment Act of 1990 (10 U.S.C. 2604).
78 For example, the Trade Act of 1974, Section 151 (P.L. 93-618).
79 For example, the Congressional Review Act (5 U.S.C. 801(d)).
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days of continuous session of Congress beginning after”80 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).81 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.
Author Contact Information
Richard S. Beth
Jessica Tollestrup
Specialist on Congress and the Legislative Process
Analyst on Congress and the Legislative Process
rbeth@crs.loc.gov, 7-8667
jtollestrup@crs.loc.gov, 7-0941
Acknowledgments
The authors are grateful for the assistance of Vivian S. Chu, legislative attorney in the American Law
Division of CRS; Christopher M. Davis, analyst on Congress and the Legislative Process in the
Government and Finance Division of CRS; Henry B. Hogue, analyst in American National Government in
the Government and Finance Division of CRS; Kevin R. Kosar, analyst in American National Government
in the Government and Finance Division of CRS; the Office of the Parliamentarian of the House of
Representatives; and the Office of the Parliamentarian of the Senate
Key Policy Staff
Area of Expertise
Name
Phone
E-mail
Legislative Procedure; Sessions of
Richard S. Beth
x78667
rbeth@crs.loc.gov
Congress; Expedited Procedures
Legislative Procedure;
Jessica Tol estrup
x70941
jtol estrup@crs.loc.gov
Sessions of Congress
Recess Appointments
Henry B. Hogue
x70642
hhogue@crs.loc.gov
Presidential Veto
Kevin R. Kosar
x73968
kkosar@crs.loc.gov
Legislative Procedure;
Christopher M. Davis
x70656
cmdavis@crs.loc.gov
Expedited Procedures
Legislative Procedure
Valerie Heitshusen
x78635
vheitshusen@crs.loc.gov
Legislative Procedure
Walter Oleszek
x77854
woleszek@crs.loc.gov
Legislative Procedure
Elizabeth Rybicki
x70644
erybicki@crs.loc.gov
80 The specific provision quoted appears in the Alaska Natural Gas Transportation Act of 1976, Section 8(g)(2) (15
U.S.C. 719f(g)(2)).
81 Different statutes carry different versions of this definition. The quotation given appears in the Alaska Natural Gas
Transportation Act of 1976, Section 8(c)(1) (15 U.S.C. 719f(c)(1)).
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