Constitution 101: Journal and Adjournment Clauses

Article I, Section 5, Clauses 3 and 4 of our Constitution proves there are some areas of the government where everyone actually can agree — well almost.

Clause 3 states, “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.”

There is really nothing controversial about this section and it’s straightforward. The idea was to keep everyone honest by having a public record. In my opinion, one of the most important commentaries on our Constitution comes from Joseph Story, one of the earliest members of the Supreme Court, 1812 to 1845. One of his best quotes comes from explaining why it is important that Americans keep tabs on their representatives.

Story wrote, “When the people become indifferent to the acts of their representatives, they will have ceased to take much interest in the preservation of their liberties. When the journals shall excite no public interest, it will not be a matter of surprise if the constitution itself is silently forgotten or deliberately violated.”

That’s powerful. There is little controversy with the idea of recordkeeping, but there is one U.S. Supreme Court case that dealt with Clause 3 while at the same time covering everyone’s new favorite topic: tariffs. Marshall Field & Co. v. Clark (1892) started in 1890 when Congress authorized President William McKinley to issue a rather high tariff.

Marshall Field & Co. sued on two grounds: that Congress did not have the authority to delegate the tariff power to the president and that the bill McKinley had signed was not the exact same wording as the official congressional Journal.

The Court ruled that Congress can in fact delegate their authority and had done so many times. They also created what has become known as the Enrolled Bill Rule, which basically says once a bill is signed by the Speaker of the House, the President of the Senate and approved by the President the courts will not inquire further into whether it was properly passed. In other words, the record cannot be used as evidence of wrongdoing and the courts do not have the authority to tell Congress how to keep its records, so long as they keep them. It’s an integral part of our separation of powers.

Clause 4 is similar but not as straightforward.

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

The most important aspect of this clause is that Congress adjourns itself. What our Founders had seen as colonists was that the royal governors could shut down their colonial legislatures for any reason. When the Virginia Legislature tried to create a day of fasting and prayer to support Boston after they were punished for the Boston Tea Party, the governor shut the legislature down before they could vote.

The way it is written, both houses have the power to adjourn separately from each other but only for three days without the other’s consent. The reason for the three-day cap was so neither branch could frustrate the legislative process. A fear was that one house could pass a bill and the other could simply adjourn for a lengthy period instead of having to vote. The idea was that both houses should be able to work together on proper adjournment. Later, in Section 2, the Constitution does give the President power to adjourn Congress if the two houses cannot come to a consensus. This is meant to give Congress a bit of incentive to work together, or the president will get involved.

Interesting enough, no president has ever used his powers from Section 2 as Congress has always come to an agreement. Presidents have also been hesitant to exercise this power so not to interfere with the separation of powers.

The closest a president has come to forcing an adjustment was in 2020 by President Trump. That April, Trump was hoping Congress would adjourn so he could use the Recess Appointments Clause from Section 2 to temporarily fill vacancies without Senate confirmation. The only way to use that clause was when the Senate was in recess. However, Congress continued to hold small meetings every few days instead of adjourning to block Trump’s plan.

During the time, the Senate was under Republican control, but the House was under the Democrats. Trump threatened to use his presidential power to adjourn Congress but by rule he only could if there was a disagreement between the two houses, which there never was. Officially, the Senate never agreed to adjourn because a few Republicans held out to block Trump. Without a disagreement between the two houses, Trump was powerless, making this one of the few clauses of our Constitution that has never been challenged.

On a completely unrelated note, I just need to say, “not so fast, my friend.” Thank you, Coach Corso, for all the memories.

James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He may be reached at Historically-Speaking1776@gmail.com.