U.S. Constitution Article II, Section 3, cl. 2

U.S. Constitution Article II, Section 3, cl. 2 is having its moment in the sun. This clause says that the President

may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;

Lots of folks are suggesting that if the Senate is being difficult about confirming Biden’s cabinet – as many expect it will be – the response to this piece of unprecedented Constitutional hardball, would be … more hardball.

The idea is that the Speaker manufactures a disagreement about adjournment between the House and Senate. Biden then prorogues Congress for, say, 11 business days. And during those 11 days — in full compliance with the rather arbitrary 10-day minimum for an intra-session recess imposed by National Labor Relations Board v. Noel Canning — Biden would then use his recess appointment power, Art II, Section 2, para 3:

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.

Not a very Bidenesque thing to do, but it would teach Mitch McConnell not to jerk him around.

Note: By modern convention a ‘session’ of congress runs for a year from January to January the following year. So a commission that expires “at the end of the next session” would in the ordinary course last for the two-year life of the current Congress.  I imagine it would take both houses to change that, but I don’t know for sure.

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18 Responses to U.S. Constitution Article II, Section 3, cl. 2

  1. Eric says:

    You know, we are in the middle of a global and deadly pandemic.

    Per the advice of the vox populi, Trump may have finally seen the light and realized the error of his ways.

    With the novel precedent set by the courts and commentators alike in this ever-present emergency, Trump may simply suspend the transition of power and let the Court decide pursuant to its six-to-three (6-3) tendencies.

  2. I would bet that Trump ultimately loses all his court challenges, at least in the sense that he fails to change the result of the election. What odds would you require to take this bet?

  3. Eric says:

    I agree with you.

  4. Vic says:

    Well, you might consider being a lawyer and stating, after some actual research, whether any modern President has ever adjourned Congress when he didn’t otherwise get his way, and if SCOTUS has ever defined “extraordinary Occasions,” because it’s all just nonsense until we know that. Do you really think a modern Congress would just sit idly by while the President sidelines them? I tend to think not. Would they have acquiesced if Trump did it? Maybe I’m incorrect, but I don’t recall that happening, and if it did, it certainly was not just so the President could appoint his Cabinet. (And I’m not sure you are reading this Constitutional quote correctly anyway, but I don’t have time to research whether a Court has clarified this somewhat ambiguous text at all.)

    I am also a bit surprised that even people in the legal profession are claiming this is all over. While we’d agree that an anecdote is not evidence, we should also agree that a sworn anecdote IS potentially evidence. While there has been little, if any, taking of sworn statements yet, I suspect their will be, and the number of anecdotes is quite large. If sworn, lots of evidence. There are a LOT of circumstantial things right now pointing to huge election fraud, violations of State and Federal law, and problems leading to miscounts, in multiple states right now. As I know you pretty much only follow fairly mainstream and left-learning sources, maybe you have not been keeping up with some of the right-leaning post election analysis. The internet has allowed a lot of analysis to be crowd sourced and there are some pretty interesting statistical analyses of the public numbers. I’m not saying ANY of it is true (you might be surprised to know I hope it’s not), but a lot of it is compelling and all of it should be vetted and determined.

    For me, it’s not a matter of who wins after all this. I really no longer think that’s important. What IS important is that in an age where I can do all my banking on a phone, buy and sell products, be uniquely identified in all kinds of situations, etc. without anybody ever losing track of who I am and/or stealing or losing my money, we can’t vote accurately. I’ve been fingerprinted and id’d so many times now over the years that nobody would ever waste more than a few minutes identifying my fingerprint found at a crime scene, yet the technology to prevent vote fraud eludes the great minds. we don’t have an election system that works. We don’t. The fact that a week later we are all still awaiting the final result is proof of that. As this uncertainty in results dates back decades, the only logical conclusion is that the powers that be don’t want it fixed. They don’t want a Court, or whoever it might be, to have the ability to accurately audit the results of an election. The machine’s fudge factor, like DNC Superdelegates, is how people get elected. The rest of it all is just voting cos-play.

    Joe Biden, if he really wants to express unity and bring people together, should be standing by Trump and demanding an audit and actual accounting. He won’t, because the real system did exactly what it was supposed to do: get rid of the outsider. 2020 happened because 2016 happened. Hillary was sure to win against Trump, so they didn’t tweak the scale enough, underestimated Trump’s support, and lost. This time, they needed to be SURE, and so Biden got more votes than Obama in precincts that Obama won big. You don’t find that at all odd? A guy who barely campaigns, who is not particularly charismatic, who barely even was supported by Obama, and certainly has no historical significance as a candidate, somehow manages to beat Obama soundly in votes? A man who got historic levels of votes himself. Does this pass the laugh test for you? Hey, maybe it happened. Maybe hating Trump is more motivating than electing the first African American President. As an African American, I find that idea ridiculous, but what do I know.

    I am completely serious that I don’t care who wins here. But this election system we have is just for show. It is a sham. I love this country, I wore the uniform of this country and swore to defend its Constitution. But if this isn’t investigated and fixed, very soon, I am done. I will never vote again for anybody. It should be the responsibility of every lawyer in this country to support the rule of law and make sure this count and accounting is done correctly and then see that the system is fixed. Federalism is not really a valid excuse here.

    I suspect we are all going to have to pretend that Biden was elected though, because it will likely be that a Federal Court will just through its hands up and note that it’s all just too late, once again.

    • Just me says:

      Reading that reminded me of this clip: https://www.youtube.com/watch?reload=9&v=ke5Mr5eCF2U

      A friend of mine wrote this on another forum, and I am borrowing it.

      Trump’s voter fraud farce is standard-third-world dictator demagoguery. But it’s shocking to witness as an American. What’s sad is that some Americans –blinded by partisan zeal– also are likely to believe his insane, unfounded charges of widespread election fraud. Of course, like any crazy conspiracy theory, a little critical thinking puts the conspiracy to bed.

      Let’s be clear, for there to be an election fraud that would actually swing a national presidential election, it would need to be massive in scale and involve the casting of tens or, more likely, hundreds of thousands of fraudulent ballots in each state. So the scale of the thing is really, really significant. Of course there are always going to be some small scale problems–a few hundred votes in each state. But what Trump is talking about is a huge fraud–thousands upon thousands of fraudulent ballots per state.

      There is no evidence of any such widespread fraud–not now or in the recent past. One of the first things President Trump did when he first took office was to set up his own crazy commission to examine this issue, and they disbanded having found nothing of major significance.

      And there is a reason they didn’t find anything. It’s impossible to pull something like that off. You have to assume that in each state where Trump claims voter fraud –i.e., any state where additional vote counting is hurting him (so, not AZ and NV where he needs more votes)–there is a massive conspiracy involving hundreds, maybe thousands, of people to obtain and submit fraudulent ballots. And it’s a pre-planned conspiracy, because obviously you can’t scheme this up on election day, but rather this requires substantial advance planning. And you have to assume that these several thousand co-conspirators all carried out the perfect crime, without slipping up. And then you need to assume that in PA, MI, WI, and GA, where these massive conspiracies are supposedly occurring, that the governors and attorneys general of each of those states–half of which are Republican–have either failed to uncover this massive fraud or ignored it. And you have to assume that Trump’s own Department of Justice has missed it too, in all these states, despite hundreds, maybe thousands, of co-conspirators being out there. And then, best of all, you have to assume this huge conspiracy has leaders with physic powers who can divine the number of fraudulent ballots they will need to manufacture to get their candidate over the top. It’s total nonsense.

      Conspiracy theorists will believe what they want to believe. They’ll believe Sandy Hook is fake, that President Obama was a Kenyan, etc. We can’t stop that. But reasonable, intelligent Republicans need to look at what this lunatic is saying and condemn him, until it’s evident to him that his own party won’t allow him to subvert this democracy to his own self-interest.

      The last numbers I saw are:
      Popular vote total: Biden leads by about 4.8 million votes.
      Arizona: Biden leads by about 15,000 votes.
      Georgia: Biden leads by about 12,000 votes.
      Michigan: Biden leads by about 150,000 votes.
      Nevada: Biden leads by about about 36,000 votes.
      Pennsylvania: Biden leads by about 45,000 votes.
      Wisconsin: Biden leads by about 20,000 votes.

      In fact, since 1992, a Republican has only won the popular vote once (Bush 2004). So no, I do not find anything even remotely credible in any of the unfounded conspiracy theory garbage that the President is throwing around. On the contrary, it seems that the will of the people has prevailed over the archaic system of the Electoral College and that a petulant man-child politician is doing considerable damage to our democracy and is dragging down millions of Americans with him into a conspiracy theory quagmire.

      So, I guess I leave off asking, is the Earth flat too?

      • Vic says:

        And in AZ there are over 63k ballots left to count…

        There is a LOT of circumstantial evidence of fraud in multiple states. In MI, for example, a significant percentage of votes came from people well over 100 years old, many over 110 preventable 115. It’s on the states website for vote data. These are voters who RETURNED a ballot. It is quite impossible as a natural thing. Now the State uses 1800 as a special date to be used to hide the identity of abuse victims, but the don’t mention the use of these other dates. Certainly, they would be foolish to use some of these dates as it would potentially skew demographic research. Maybe MI did, maybe they didn’t. We don’t know.

        Now does the abundance of 100+ year old active voters in MI mean that fraud happened and that these votes are fraudulent? Not automatically, but it is hardly flat-earthier conspiracy thinking to think that it’s worth looking into as potential fraud. This is the State’s own reported data, keep in mind.

        These kinds of stories from different states are abundant. Are all of them true? Who knows. But maybe it’s worth wondering why precincts in WI had a 200 percent turnout and a statewide 87 percent turnout. Yes, they have same day registration, but a 200percent turnout, favoring Biden, that utterly overwhelms the Obama turnout?

        Look at the application of Benford’s Law that has been done. Now, it is true that it may not work so well with election data, as certain kinds of data tend to not work with it -some say elections, some say not. What is interesting is that applying it to other candidates it works fine in this case, but if you apply it to Biden’s data, it suggests huge fraud. Note I say suggests. Does that mean there WAS fraud? No. But if you were being audited, and your numbers did this, you get looked at with a lot of extra scrutiny. The fact that in this election Benford’s Law seems to work and suggests no fraud for Trump, but skews all out of whack for Biden. What does this mean? I don’t know, but only a fool would just ignore it when you couple it with all the other statistical anomalies in this election.

        Again, I don’t CARE who wins, so long as it is a fair and accurate election. A lot of circumstantial evidence points to fraud at some scale. Is it enough to change the outcome? I don’t know. But why should we just ignore it?

        But as I said, the election system is out and out broken. The fact that we are sitting here a week later and things are still undecided, and soon to be litigated, suggests nothing else. As if it it 1860. They want it this way. This becomes more obvious every time. I will no longer participate in this charade until they fix it.

        And why should Trump, or ANY candidate concede, say, in AZ when there are 4x the number of outstanding ballots as the gap?

          • Vic says:

            Everything in that article, and I’ve seen a few others just like it, backs up my central point: the system is broken and no effort is being made to fix it, or even care.

            When a woman who has a driver’s license, and is a known resident of the State is somehow falsely believed by the election system to be 119 years old, along with over 16,000 of her fellows, it is laughable to claim, “see, the system works” when someone after the fact determines that she is actually 76, or whatever.

            No other aspect of your life requiring identification will ever be even a little out of sync with alarms going off all over. Does your bank ever think you are dead, or 150 years old? The DMV? Have you ever been denied a flight because the TSA thinks you are traveling under a fake ID? Do you think if any of these things were true, nobody would care? Does the Election System have no access to State data on anyone on its rolls? Why not?

            More importantly, should we just let anyone who can get a ballot into the elections board at any time in any way, have their vote count, or not count, at the whim of whoever happens to be in power at the moment? Should the laws applicable to elections be mutable, or even unknown, right up until whoever is in charge of counting declares a winner? Should voting continue to be a crapshoot?

            If you’re not asking these questions, then you don’t care about our electoral process, only winning.

            • Just me says:

              I am struggling to understand what you want.

              Are you suggesting that there is an error-free method available for voter verification and that it can be found by modeling banking? If so, you’re simply wrong. As anyone who has ever had their bank information compromised can tell you – and that’s probably most people – the banking verification system is not perfect.

              Or are you suggesting that the current voting system is so riddled with actual problems in the form of fraudulent votes that it is not reliable? If so, I would refer you back to the Trump administration’s commission on voter fraud which found no evidence of meaningful widespread voter fraud.

              Or are you simply upset that this is taking long to get sorted out? In which case, I am generally sympathetic but don’t think that it impacts the credibility of the election or is likely to change the presumed outcome.

              Also, there is something like the banking system’s verification in place for most Americans, and, having used it, it is not a reasonable replacement for the current voting system. The IRS has a personal verification system that is similar to the banking system, but is more secure. The problem is that it is TOO secure. For example, it has happened to me more than once that I forgot some IRS account credentials issue (the name of my my mother’s childhood best friend’s second ex-husband; or some other such random thing) and was locked out of my IRS account for a security related cooling off period (maybe 48 hours). That’s not an acceptable way to run a national election.

              I guess the real bottom line is, I don’t see anything in your comments, or in this electoral process, that casts any genuine doubt on the integrity of the election or its presumed results – just like I didn’t see anything that cast genuine doubt on the integrity of the election of Trump.

              • Vic says:

                So, you believe that we cannot, in 2020 have a voting system that properly identifies each voter and does not allow unauthorized votes because sometimes people have their identity stolen?

                The perfect, is, as always, the enemy of the good.

                • Just me says:

                  “The perfect, is, as always, the enemy of the good.”

                  Funny, I feel like I could have used those words to criticize your position, not the other way around. I think that our current system is not perfect but is good enough.

                  If I could design the best system, it actually wouldn’t look terribly different than what we have. In person voting, including dropping off completed ballots in a sealed envelope, with presentation of government issued ID. Paper ballots counted with analog counting machines that are not connected to the internet or reliant on complicated software.

                  While this is not perfect, it strikes a reasonable balance between security, accessibility, and transparency. I firmly believe that analog paper voting and counting is important so that the process remains understandable to the common man.

                  I am not in love with mail-in voting or absentee voting, but that too seems to have some place in the mix.

                  And because time and again, including this administration’s own voter fraud commission, we have seen that there is no evidence of widespread fraud in the voting system, I’d say that the current system is working out just fine.

                  • WarforPeace says:

                    Vic, and people who think as he does, will never be informed enough such that they will change their beliefs about something they NEED to believe is real.

                    You’ve given Vic some very logical explanations, addressing his complaints and questions. However, you can see that Vic isn’t interested in your reasoned and logical thoughts and explanations. He is simply interested in promoting that what he believes, is what the facts are. In his version of reality, our voting system is broken, flawed, rigged, corrupted, and can never give the correct count for the true winner. But that’s true only when Trump does not win.

                    Recall that in 2016, Trump made the SAME claims of a “rigged” election and voter fraud claims. He made those claims before the results came in. Even then he wanted his true believers to accept that if he does NOT win, then there MUST be fraud, because, after all, most if not all Americans want Trump to be their President.

                    As we know, in 2016 he won. And for the conspiracy theory minded cult members, Trump SPOILED the “They” and their attempts at rigging the election. And Trump fought and prevailed at defeating all of the attempts at voter fraud in 2016. His win was proof to his cult that only he can fight against that “deep state” system.

                    And now, 2020. The same conspiracy theory beliefs are in play, but Trump did NOT win. So, that is definitive proof that the “THEY” have increased their efforts and their hold on our rights and freedoms, and falsely installed Biden as the winner!

                    That’s how it goes with conspiracy theory cultists. They simply alter their belief narratives to use a negative, to them, result as PROOF that their beliefs are facts and reality.

                    When Trump wins, then that proves that Trump is the “deep state” slayer. When Trump loses, then that proves how corrupt and deep that “deep state” really is. So, of course, the cultists must rise up and fight.

                    Fight for what? They fight so they don’t have to admit how WRONG, wrong, wrong, their beliefs are.

      • Vic says:

        You might also note that in PA, a Court rewrote the election statute sua sponte. It didn’t interpret one. It didn’t clarify any ambiguity. It stated that the law was clear, but the Court felt it was not good, so it simply changed when mail in ballots could be received. This is Federally unconstitutional and I strongly suspect, unconstitutional in MI’s constitution.

        How many votes does this affect? I’m not sure anyone knows since the State seems to have ignored Justice Alito’s relevant order on the subject. Maybe they know, but no one is saying.

        Are these legal votes? No, they are not, even if they would otherwise be eligible votes from eligible voters. That’s how the law works. And of the very few things that the Federal Constitution mandates regarding election law, PA violated it patently. That’s not some wack-a-doodle conspiracy theory, it’s what happened. It’s what happens NEXT that matters.

    • WarforPeace says:

      Vic, you are wrong. And I know you can’t accept that you are wrong, because your mind’s need to hold onto your ‘beliefs as facts’ is pathologically strong. The only way to overcome that is for you, and others like you, to constantly question if your beliefs in conspiracy theories makes factual sense. I have a strong conclusion that you will not do that. You will not allow your conscious self to question the iron grip of your base mind’s need to hold on to your accepted conspiracy theory as fact.

      This is proven by the fact that you find the wildly fantastical and varied “voter fraud” conspiracy theories to be “compelling”, as in, you are compelled by “facts” you have allowed to bypass your bullshit guard. And those “facts” have no actual tangible or knowable evidence, thus rendering those “facts” as nothing more than wildly fantastical beliefs of fevered true believers of all things “conspiracy theory”.

      How do we know that those conspiracy theories of voter fraud are baseless and void of fact? We know that because Trump and his cult members have filled a plethora of court cases and have FAILED at winning all of them. The couple of cases where Trump and his cult cheered up, because a judge wanted to hear more, those too were lost and/or thrown out. Why? Because in our legal system, the decisions of the court are based on best arguments and evidence proving those claims and arguments. Trump and his cult have LOST all of their cases because they do not have sound, reasoned, and reasonable arguments, along with having NO evidence that could back their claims and arguments.

      And still, that fact, and the facts of dozens of LOST or thrown out cases, cannot penetrate the granite headed minds of those who first conclude and then fill in the “facts” category with their beliefs of what they want to be true. IOW, no amount of logical explanation, nor the numerous lost court cases, is ever going to be enough to penetrate the stubborn, arrogant, and self delusional Trump cult members.

      And that is not at all funny nor amusing. It is quite sad, and worse, it is dangerous to health and safety of regular American citizens, and to our whole country and system based on our US Constitution. That’s the Constitution that too many Trump cult members don’t want to understand, and would tear up and destroy it before ever admitting that they are simply WRONG, and that their beliefs are not based on reality.

      The Trump cultists have become a group that does not care about anything or anyone who does not fully bow down to and support what they say is reality and truth. It is very much like a religious cult who would rather kill others than allow themselves to question their own beliefs. They are so delusional that they are willing to attack and kill. Evidence for that claim?
      Here:
      https://www.reuters.com/article/us-usa-election-trump-fraud-insight-idUSKBN2801D4

      And there are many more like those Trump cultists.

  5. Eric says:

    Now who can argue with that?

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