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The Third Circuit and the “Session” of the 18th Century Vermont General Assembly

As mentioned in my prior post, in the course of analyzing the meaning of “recess” in the Recess Appointments Clause, the Third Circuit considered legislative practice at the time of the framing. In looking at the state legislatures prior to 1787, the court found what it viewed as conflicting evidence on whether recesses are limited to intersession breaks.

Some state constitutions, the court noted, clearly indicated that a “recess” and a “session” cannot occur conterminously, thus supporting the intersession recess theory. For example, the Massachusetts and New Hampshire constitutions contain provisions that “make sense only if the legislature is not in ‘session’ when it is ‘in recess.’” Opinion at 48. (This is a point I previously made with respect to the Massachusetts constitution).

On the other hand, the court pointed to instances where the executive branch of a state had (allegedly) interpreted the “recess” to include intra-session breaks. For example, the Vermont constitution granted the executive power to lay embargoes during “the recess of the legislature only.” The Vermont General Assembly, which was meeting in Windsor, adjourned on April 16, 1781, stating that it would next meet on the second Wednesday of June at Bennington. During this adjournment, in May 1781, the Governor of Vermont imposed an embargo.

According to the Third Circuit, this must have been an intra-session break because “the legislature had not adjourned without day, as they often did to end the last meeting of the year.” Opinion at 50 n.16. But who says that a session must be ended by adjournment without day? According to the court, “everyone agrees” that this is the case, at least with respect to how Senate sessions are ended. See Opinion at 75.

The Journals of the Vermont General Assembly, however, indicate that the term “session” was not used only to refer to the period ended by adjournment sine die. The Vermont constitution provided for the members of the legislature to be chosen each September and for the legislature to meet on the second Thursday in October. On that day, the General Assembly would meet “according to the Constitution” and would choose a clerk, speaker and other officers. During the year, however, the General Assembly would adjourn for periods of several months, specifying the date and place at which it would next meet. Each of these meetings is recorded in the Journals as a “session” or an “adjourned session” held at the particular place in question.

Moreover, the Journals indicate that the General Assembly would refer to the “next Session” or the “last Session” when the reference is not to a different legislative year, but to one of these separate meetings taken within the legislative year. For example, on October 24, 1778, the General Assembly resolved that “the next Session of this Assembly be held on the second thursday of February next, at Bennington meeting house.” Similarly, the Journal entry for March 9, 1790 refers to a report of a committee appointed “last Session” where the committee had been appointed during the meetings of the legislature from October 14, 1779 to October 27, 1779. In short, the term “session” was used to describe the period during which the legislature was assembled at a particular place, a period which ended when the legislature adjourned so that members could return to their homes.

It is not clear whether these sessions had any parliamentary significance. The officers elected at the initial session in October remained in office through the legislative year. Each of the additional sessions during the year begins by indicating that the General Assembly “met according to adjournment,” which may indicate that legislative business continued from the prior session. Only the final adjournment of the year was “without day.”

Moreover, the Vermont constitution makes two references to the “next Session” of the General Assembly, one of which requires that proposed legislation be printed for the people and not enacted into permanent law “until the next Session of the Assembly.” The other places a temporal limit on the Governor’s power to issue reprieves for capital offenses. Although I do not know for sure, it seems likely to me that the “Session” referred to in these provisions is the annual session at which the General Assembly first meets. This would be consistent with the apparent purpose of the limitation on permanent legislation to allow the people to instruct their representatives during the election process.

If this is correct, it suggests that the term “session” in the Vermont legislature had different meanings depending on the context. For at least some constitutional and parliamentary purposes, it referred to the entirety of the annual life of the legislature (see, e.g., the entry for October 14, 1779, in which the Clerk and Speaker were appointed for the “present Session”). But it was also used to refer to separate meetings within the legislative year. It is unclear whether a “session” in the latter sense represented any formal parliamentary action or recognition, or whether it was simply ordinary parlance for a period during which the legislature was assembled at a particular place.

Thus, the Third Circuit’s conclusion that the Vermont embargo was imposed during an “intra-session” break is based on the assumption that the term “session” must be read in a technical parliamentary sense as a period of legislative sitting ended by adjournment sine die. This approach would seem to be in tension with its own observation that the “”Constitution was written to be understood by the voters;  its words and phrases were used in their normal and ordinary as distinguished from technical meaning.”" Opinion at 39 (quoting District of Columbia v. Heller, 554 U.S. 570, 576 (2008)). The majority explains that “the average citizen likely would have understood the Constitution in reference to the state constitutions and practices at the time,” Opinion at 46 n.13, but the Vermont example shows that the meaning of “session” varied even in the practice of a single legislature.

If the April and June 1781 meetings of the legislature constituted separate formal parliamentary sessions, then the Vermont example is consistent with the theory that “the Recess” of the Senate occurs only when the Senate formally ends a session. (This is Professor Rob Natelson’s view). On the other hand, if the April and June 1791 meetings were only sessions in an informal or colloquial sense, this does not necessarily mean that Vermont (or the Governor of Vermont) embraced the concept of an intra-session recess. Instead, the Governor’s action in May 1781 was consistent with the dichotomy between “recess” and “session,” but recognized in the context of the embargo power that the “recess” referred to in the Vermont constitution was the period between “sessions” in the less formal sense. This makes perfect sense because there would seem to be little reason why the Governor should be deprived of the embargo power simply because the General Assembly had adjourned for several months within a legislative year, rather than for a similar amount of time at the end of the legislative year.

Note: if you would like to review the Journals and Proceedings of the Vermont General Assembly for yourself, (a) you have no life and (b) have at it.

4 Comments

  1. Commenter says:

    I was struck by this passage, and how it suggests exactly the opposite result you are advocating for: “there would seem to be little reason why the [President] should be deprived of the [recess appointment] power simply because [Congress] had adjourned for several months within a legislative year, rather than for a similar amount of time at the end of the legislative year.” So why exactly do you not agree with this too?

    Also, I think this post helpfully reveals that it’s important to understand what a ‘session’ is when discussing whether a recess was inter- or intra-session, and that it’s also important to be consistent when comparing practices of different legislative bodies. So one can’t properly respond to the argument that “the recess” was historically interpreted to include intra-(formal) session breaks by saying that those breaks were all inter-(informal) session breaks. It’s an apples-to-oranges comparison, right?

    • I am not sure what you mean by the “opposite result” I am advocating for, but I do agree with your paraphrased statement.

      With regard to your other point, I think it is important to distinguish two questions. First, what is the relationship between “the Recess” and “the Session”? Here I think the evidence is very clear that these are mutually exclusive terms so that the Senate cannot be in recess and in session at the same time. I have laid out in some excruciating detail my reasons for coming to this conclusion.

      The second question is how one knows whether the Senate is in session or in recess. Does the Senate stay in session as long as it says it is in session (ie, a formal session approach)? Or is it in session only so long as it is assembled at the seat of government (a factual session approach)? And if the latter, how does one tell if it is assembled at the seat of government?

      So if your second point is that it would not make sense to read the “recess” in the RAC as referring to an informal or factual recess, and read the “session” to refer to a formal session, I agree with that as well.

  2. Commenter says:

    Ok, so on point one you agree that it makes little sense to deprive the President of the recess appointment power during a lengthy intrasession break. I’m a faithful reader of the blog – which I very much enjoy – and it seemed you were suggesting the President should not have that power but maybe that’s wrong.

    My second point is this: People say that “the recess” naturally refers to intersession but not intrasession breaks. That requires the same people to define what they mean by “session.” So they say that it is the period ending with adjournment sine die. Fine. But then the government shows that legislative bodies at the Framing took lengthy breaks in the middle of sessions (as the other side defines them) and that such breaks were referred to as “the recess.” Here’s my point: The response you’ve laid out above *changes the definition of session* in response.

    Your claim that a body cannot be in “recess” and in “session” at the same time is of a piece with such logic: you say there cannot be an intra-session “recess” of a legislative body. But we know that *they did exist.* Isn’t that the point of the Vermont example – not to mention the other examples in the government’s cert petition – it reveals that there is such a thing as an intrasession “recess” and thus undermines your basic claim. And I’m not sure how this post rehabilitates it.

  3. When I say that the Senate cannot be in session and in recess at the same time, I am referring specifically to how those terms are used in the RAC. Because the terms are used relative to each other, there can be no such thing as an “intra-session” recess for purposes of the RAC.

    The Vermont example can be seen in two ways, If one starts with this assumption that a session can only end by adjournment sine die, then the Governor’s exercise of the embargo power in May 1781 can be seen as the recognition (erroneous, in the Third Circuit’s view) of an intra-session recess for purposes of the exercise of that power.

    If one does not start with the assumption that a session can only end by adjournment sine die, then the Vermont example can be seen as consistent with the inter-session recess theory because the April and June meetings were considered to be separate sessions. This in turn suggests that a Senate session may end by something other than adjournment sine die.

    In any event, I think that the evidence that “session” and “recess,” as used in the RAC, are mutually inconsistent terms is far stronger than the evidence as to how one ends a Senate session. I lean toward the conclusions that (1) adjournment sine die is not necessary to end a Senate session and (2) no formal Senate declaration or action is necessary to end a session. However, if these conclusions are wrong, and a Senate session can only end by adjournment sine die, then I would say that only the period following adjournment sine die constitutes “the Recess” within the meaning of the RAC.

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