[Congressional Record (Bound Edition), Volume 158 (2012), Part 10]
[Senate]
[Pages 13326-13329]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     PRO FORMA SESSION APPOINTMENTS

  Mr. McCONNELL. Mr. President, in January of this year the President 
of the United States made several appointments without obtaining the 
Senate's advice and consent. He asserted that the Recess Appointments 
Clause of the Constitution authorized these

[[Page 13327]]

appointments, even though the Senate was conducting a series of pro 
forma sessions at the time of the appointments. According to the 
administration, these pro forma sessions had no legal effect on the 
President's authority under this Clause because pro forma sessions do 
not allow the Senate to perform its constitutional functions or conduct 
business. The Congressional Research Service has found, however, that 
pro forma sessions, such as the ones occurring during the time of these 
so-called recess appointments, have satisfied--and continue to 
satisfy--numerous Constitutional, statutory, and legislative 
requirements, and that the Senate, in fact, has conducted business 
during such sessions. The Congressional Research Service also has found 
that the administration has repeatedly recognized the legal validity of 
pro forma sessions for purposes of satisfying these various 
requirements. I ask unanimous consent that the analysis of the 
Congressional Research Service from March 8, 2012 entitled ``Certain 
Questions Related to Pro Forma Sessions of the Senate'' be printed in 
the Record following this statement.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               Congressional Research Service,

                                                    March 8, 2012.
     MEMORANDUM
     To: Senate Minority Leader
     From: Christopher M. Davis, Analyst on Congress and the 
         Legislative Process, 7-0656
     Subject: Certain Questions Related to Pro Forma Sessions of 
         the Senate
       This memorandum responds to your request for information 
     about certain pro forma sessions of the Senate. Specifically, 
     you asked CRS to identify instances in which a pro forma 
     session of the Senate might be interpreted as accomplishing 
     some further end in addition to meeting the constitutional 
     requirement that neither chamber recess or adjourn for 
     extended periods without the permission of the other.


                Pro Forma Sessions of Congress Generally

       Under Article I, Section 5, Clause 4 of the Constitution, 
     neither chamber of Congress may adjourn or recess for more 
     than three days without the consent of the other. In 
     calculating such a three day period, either the day of 
     adjourning or the day of convening must be included. Sundays 
     are excluded from the calculation, being considered a dies 
     non under longstanding parliamentary law.
       A chamber can adjourn within the three day limit, for 
     example, from Thursday to Monday, or from Friday to Tuesday, 
     by simply adopting a motion. Should a chamber wish to leave 
     for a longer period, however, the other chamber must consent 
     to the absence. Historically, for such purposes, the two 
     houses have most often adopted a concurrent resolution 
     through which each consents to the absence of the other for a 
     specified period.
       In the normal course of business, party leaders in one or 
     both chambers may wish to schedule periods of absence that 
     exceed the three day constitutional limit by only a short 
     period, perhaps by as little as one day. It is not uncommon, 
     for example, for the House or Senate to adjourn from Thursday 
     to Tuesday, or from Friday to Wednesday. In instances of this 
     type, the chambers have evolved a practice of holding a short 
     session sometime during the absence to comply with the 
     constitutional limit described above. Such ``pro forma'' 
     sessions, or sessions held for the sake of formality, allow a 
     chamber to comply with the Constitution but not expend the 
     time or trouble of acting on an adjournment resolution. In 
     most cases, little or no business is conducted during such 
     sessions because it is generally understood that few Members 
     are present, and that the primary purpose of the meeting is 
     to obviate the need to agree to an adjournment resolution. 
     The Senate often adopts an order by unanimous consent which 
     specifies that such a meeting or series of meetings is to be 
     pro forma and that no legislative business is to be conducted 
     on such days.
       It is important to note that the term pro forma describes 
     the reason for holding the session, it does not distinguish 
     the nature of the session itself. In common congressional 
     usage, Members and staff often use the term pro forma as 
     being synonymous with a session at which no business will be 
     conducted. While the primary purpose of a pro forma session 
     of the Senate may be to comply with the constitutional 
     strictures on adjournment, a pro forma session is not 
     materially different from other Senate sessions. While, as 
     noted above, the Senate has customarily agreed not to conduct 
     business during pro forma sessions, no rule or constitutional 
     provision imposes this restriction. Should the Senate choose 
     to conduct legislative or executive business at a pro forma 
     session, it could, providing it could assemble the necessary 
     quorum or gain the consent of all Senators to act. The House 
     of Representatives, which is bound by the same constitutional 
     requirements as the Senate, regularly permits business on pro 
     forma days, including the introduction and referral of 
     legislation, the filing of committee reports and 
     cosponsorship forms, and the receipt and referral of 
     executive communications and Presidential messages. Even in 
     cases in which the Senate has agreed not to conduct business 
     at a pro forma session, it could subsequently adopt a second 
     consent agreement which would permit them do so.


   Other Motivations or Purposes for Pro Forma Sessions of the Senate

       While the primary purpose of a pro forma session of the 
     Senate has been to comply with the constitutional limits on 
     adjournments and recesses, it is possible that such meetings, 
     being sessions of the Senate, may have additional purposes as 
     well. At your request, CRS examined pro forma sessions of the 
     Senate which occurred between the 109th Congress (2005-2006) 
     and the present as well as the opening day of each Senate 
     session between 1934 and the present, in order to identify 
     sessions which may have satisfied some other purpose in 
     addition to compliance with Article I, Section 5, Clause 4 of 
     the Constitution. On the basis of these data, CRS identified 
     two pro forma sessions at which legislative business was 
     conducted, three periods of pro forma sessions that allowed 
     the Senate to avoid returning nominations to the President, 
     and six pro forma days that satisfied the constitutional or 
     statutory requirement that the Senate convene a new session. 
     In addition, both the Senate and the Executive Branch take 
     pro forma sessions into account in calculating various 
     required time periods pursuant to expedited procedure 
     statutes. The following sections discuss each of these 
     categories in turn.
       The instances cited in this memorandum cannot be said to be 
     exhaustive, but are intended to underscore the idea that pro 
     forma Senate sessions may be motivated by factors other than 
     complying with the constitutional limit on adjournments, and 
     may satisfy the requirements of other procedural authorities, 
     including other provisions of the Constitution, Senate rules, 
     and statutes.


     Pro Forma Sessions At Which Legislative Business Was Conducted

       Using information from the Legislative Information System 
     of the U.S. Congress (LIS) and relevant issues of the daily 
     Congressional Record and Senate Calendar of Business, CRS 
     identified 114 pro forma sessions of the Senate which 
     occurred between January 4, 2005 and March 8, 2012. These pro 
     forma sessions are identified in Table 1.
       Of these 114 pro forma meetings of the Senate, CRS 
     identified two at which legislative business appears to have 
     been conducted. On both of these occasions, the two houses 
     had agreed to no adjournment resolution, so that the Senate 
     was required to meet in order to avoid violating the 
     constitutional prohibition on absences of more than three 
     days length. The days in question are:
       December 23, 2011: On this day, the Senate adopted an order 
     by unanimous consent which provided for Senate passage of a 
     H.R. 3765, a House measure extending the, ``payroll tax, 
     unemployment insurance, TANF, and the Medicare payment fix.'' 
     The consent order further provided that upon receiving a 
     message from the House of Representatives requesting a 
     conference with the Senate on H.R. 3630, the Middle Class Tax 
     Relief and Job Creation Act of 2012, the Senate agree to the 
     request, and the Senate presiding officer be authorized to 
     appoint Senate conferees with a party ratio of 4-3. An 
     enrolled measure was also signed on this day by Sen. Reid, 
     serving as Acting President Pro Tempore.
       August 5, 2011: On this day, the Senate, by unanimous 
     consent, passed H.R. 2553, a measure to amend the Internal 
     Revenue Code of 1986 to extend the funding and expenditure 
     authority of the Airport and Airway Trust Fund and to amend 
     title 49, United States Code, to extend the airport 
     improvement program.
       In the first instance cited above, the previous meeting of 
     the Senate had occurred on Tuesday, December 20, 2011. In the 
     second instance, the Senate had most recently met on Tuesday, 
     August 2, 2011. At both of these pro forma sessions, pursuant 
     to unanimous consent orders adopted by the Senate, no 
     legislative or executive business was to be conducted. The 
     Senate subsequently, however, decided to conduct business 
     during the session.


Pro Forma Sessions Which Satisfied Senate Rules Governing the Return of 
                        Presidential Nominations

       CRS also identified three distinct periods of recent pro 
     forma Senate session which, in addition to satisfying the 
     constitutional limits on recesses and adjournments discussed 
     above, also seemed to satisfy provisions of the Senate's 
     standing rules related to the consideration of presidential 
     nominations. Paragraph 6 of Senate Rule XXXI, states in part:
       . . . if the Senate shall adjourn or take a recess for more 
     than thirty days, all nominations pending and not finally 
     acted upon at the time of taking such adjournment or recess 
     shall be returned by the Secretary to the President, and 
     shall not again be considered unless they shall again be made 
     to the Senate by the President.
       In short, unless the Senate takes action (such as adopting 
     a unanimous consent request) to override the provisions of 
     Rule

[[Page 13328]]

     XXXI, the Senate Executive Clerk is supposed to return all 
     nominations to the President at the outset of any period in 
     which the Senate is to be absent for more than thirty 
     calendar days.
       In the three instances identified, the Senate held only pro 
     forma meetings during periods in excess of thirty days. In 
     each period, however, nominations were not returned to the 
     President pursuant to Rule XXXI. It seems apparent that the 
     Senate viewed its occasional pro forma meetings as a means of 
     preventing a recess of more than thirty days for purposes of 
     these requirements of it rules. Arguably, the Executive 
     Branch, not having had its nominations returned to it as 
     would be the well-established practice, was also at least 
     aware of the Senate's understanding in this regard. The three 
     periods in question identified are:
       August 2--September 6, 2011: The Senate held pro forma 
     sessions during this 34-day period of recess. No unanimous 
     consent agreement was identified to hold pending nominations 
     in status quo and they were not returned to the President.
       September 29--November 15, 2010: The Senate held pro forma 
     sessions during this 47-day period of recess. No unanimous 
     consent agreement was identified as being adopted prior to 
     the recess to hold pending nominations in status quo and they 
     were not returned to the President.
       2008-2009: The Senate held pro forma sessions during three 
     relevant periods of recess in 2008-2009: August 1-September 
     8, 2008 (31 days); October 2-November 17, 2008 (46 days); and 
     November 20, 2008-January 3, 2009, the balance of the 110th 
     Congress (43 days). Consequently, although no unanimous 
     agreement was identified as having been adopted in 2008 to 
     hold pending nominations in status quo, they were not 
     returned to the President until the sine die adjournment of 
     the Congress.


  Pro Forma Sessions of the Senate Which Satisfied the 20th Amendment

       CRS also identified six pro forma meetings of the Senate 
     which satisfied the provisions of Clause 2 of the 20th 
     Amendment to the Constitution.
       Clause two of the 20th amendment to the Constitution 
     states:
       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.
       At your request, CRS examined the opening day session of 
     each regular and special session of the Senate held between 
     1934 and the present, the period coinciding with the period 
     that paragraph 2 of the 20th Amendment has been in force. CRS 
     identified six Senate pro forma opening day sessions which 
     satisfied the constitutional requirements for convening its 
     session on the prescribed date. These opening day pro forma 
     sessions were:
       January 3, 1980
       January 3, 1992
       January 3, 2006
       January 3, 2008
       January 5, 2010
       January 3, 2012
       With one exception, the January 3, 1980 session, each of 
     these meetings was pro forma in nature, with no legislative 
     or organizational business conducted. In the case of the 
     January 3, 1980 session, the Senate referred a previously-
     received message from President Jimmy Carter transmitting his 
     veto of S. 2096, a bill to provide for a study by the 
     Secretary of Health, Education, and Welfare of the long-term 
     health effects in humans of exposure to dioxins. In addition, 
     five Senators inserted undelivered remarks in the 
     Congressional Record on this day. The approximate duration of 
     the January 3, 1980 session of the Senate was two minutes.


 Pro Forma Sessions Count for Purposes of Computing Certain Statutory 
                              Time Periods

       Finally, CRS has identified several rules enacted in 
     statute under which pro forma sessions are treated as 
     sessions of the Senate like any other for purposes of 
     computing certain time periods related to actions taken by 
     Congress and the President. Pro forma Senate sessions satisfy 
     not only the limits on recesses and adjournments contained in 
     Article I, Section 5, Clause 4, but also the provisions of 
     each of these statutory rules in the eyes of both the 
     Executive and Legislative Branches.
       Congress sometimes chooses to include in law provisions 
     which delegate to the President or another Executive Branch 
     official the authority to issue a regulation or take some 
     other specified action. As part of this delegation of 
     authority, Congress often reserves the right in the law to 
     pass its own judgment on the proposed regulation or action, 
     typically by passing a joint resolution to approve or 
     disapprove it before it takes effect. To facilitate action on 
     such a joint resolution, Congress often writes into law 
     special parliamentary procedures for considering the measure, 
     including strict time periods for the introduction, committee 
     action, and floor consideration of such a joint resolution. 
     Such statutory procedures are often colloquially referred to 
     as ``fast track'' procedures because they expedite the 
     consideration of specified legislation in one or both 
     chambers.
       Time periods under such statutory rules are usually 
     calculated in one of two ways. The first way marks time by 
     counting days of ``House/Senate session.'' Under such a 
     mechanism, any day which the House or Senate meets counts 
     toward the deadline established by the law. Under the terms 
     of the Congressional Review Act, for example, the Senate has 
     60 days of ``Senate session'' to act under fast track 
     procedures on a joint resolution which would disapprove a 
     proposed rule promulgated by the Executive Branch. Both 
     branches understand and have agreed to this time period for 
     expedited action before a proposed agency rule can enter into 
     force. When calculating time periods under statutory rules of 
     this type, pro forma sessions of the Senate count as days of 
     Senate session; that is, they are viewed as a session of the 
     Senate like any other.
       The second way of counting time which is common in such 
     statutory rules is known as counting ``days of continuous 
     session.'' This way of calculating time periods takes into 
     account the differing schedules of the House and Senate. When 
     counting days of continuous session, every calendar day is 
     counted, including Sundays and holidays, and the count pauses 
     only when either the House or Senate (or both) have adjourned 
     for more than three days pursuant to an adjournment 
     resolution. For example, under the terms of the Defense Base 
     Closure and Realignment Act of 1990, the Secretary of Defense 
     may not close or realign any of the specified military 
     installations until 45 ``days of continuous session'' have 
     elapsed after a base closure plan is submitted to the House 
     and Senate. As with the Congressional Review Act described 
     above, both the Legislative and Executive Branch understand 
     and have agreed to be bound by this manner of counting.
       As with days of Senate session, pro forma meetings of the 
     Senate are also taken into account by both branches when 
     calculating ``days of continuous session'' for purposes of 
     such statutory rules. Should the Senate meet in a series of 
     pro forma sessions, a statutory ``days of continuous 
     session'' clock would continue to run not only on the days of 
     the pro forma sessions themselves, but also during the 
     intervals of three or fewer days between the pro forma 
     sessions, when the Senate was absent but formally in recess.
       CRS has identified 22 statutory legislative procedures now 
     in law which calculate time periods in either or both of the 
     ways discussed above and which take pro forma days of Senate 
     session into account in conducting a specific calculation. 
     These statutory rules are:
       Executive Reorganization Authority (5 U.S.C. 902-912). 
     (Days of continuous session);
       District of Columbia Home Rule Act, 303(b), 602(c), 604. 
     (Days of continuous session);
       Title X of the Congressional Budget and Impoundment Control 
     Act of 1974, 1011-13, 1017. (Days of continuous session);
       Multiemployer Guarantees, Revised Schedules [Employee 
     Retirement Income Security Act of 1974, 4022A (29 U.S.C. 
     1322a)]. (Days of continuous session);
       Atomic Energy Act Provisions on Nuclear Non-Proliferation 
     [42 U.S.0 2153-60]. (Days of continuous session);
       Trade Act of 1974, Procedures for Trade Implementing Bills 
     and Resolutions of Disapproval [19 U.S.C. 2191-2192]. (Days 
     of continuous session);
       Energy Policy and Conservation Act [42 U.S.C. 6421]. (Days 
     of continuous session);
       Nuclear Waste Fund Fees [42 U.S.C. 10222]. (Days of 
     continuous session);
       The Atomic Energy Act of 1954, As Amended (22 U.S.C. 
     2776(b)). (Days of continuous session);
       Federal Election Commission Regulations, 311(d) [2 U.S.C. 
     438(d)] (Days of Senate session);
       Crude Oil Transportation Systems, [43 U.S.C. 2008]. (Days 
     of continuous session);
       Alaska National Interest Lands Conservation Act [16 U.S.C. 
     3232-3233]. (Days of continuous session);
       Federal Lands Policy and Management Act of 1976 [43 U.S.C. 
     1701]. (Days of continuous session);
       Marine Fisheries Conservation Act [16 U.S.C. 1823]. (Days 
     of continuous session);
       Nuclear Waste Policy Act of 1982 [42 U.S.C. 10101]. (Days 
     of continuous session);
       Defense Base Closure and Realignment of 1990, as amended 
     [10 U.S.C. 2687 note]. (Days of continuous session);
       Congressional Accountability Act of 1995 [2 U.S.C. 1384]. 
     (Days of continuous session);
       Congressional Review of Agency Rulemaking [5 U.S.C. 801, 
     802, 804]. (Days of continuous session and days of Senate 
     session);
       Balanced Budget and Emergency Deficit Control Act 258 [2 
     U.S.C. 904(i), 907a-907d]. (Days of continuous session);
       Medicare Cost Containment, Medicare Prescription Drug, 
     Improvement, and Modernization Act of 2003 [31 U.S.C. 1105 
     note]. (Days of Senate session);
       Minimum Standards for Identification of Documents; 
     Intelligence Reform and Terrorism Prevention Act of 2004 [49 
     U.S.C. 44901 note]. (Days of Senate session); and
       Independent Payment Advisory Board [42 U.S.C. 1395kkk]. 
     (Days of continuous session).

        TABLE I. PRO FORMA SESSIONS OF THE U.S. SENATE: 2005-2012
                          [As of March 8, 2012]
------------------------------------------------------------------------
                    Congress & Years                      Pro forma Day
------------------------------------------------------------------------
112th (2011-2012)......................................  ...............

[[Page 13329]]

 
                                                             02/24/2012
                                                             02/21/2012
                                                             01/20/2012
                                                             01/17/2012
                                                             01/13/2012
                                                             01/10/2012
                                                             01/06/2012
                                                             01/03/2012
                                                             12/30/2011
                                                             12/27/2011
                                                             12/23/2011
                                                             12/20/2011
                                                             11/25/2011
                                                             11/22/2011
                                                             10/27/2011
                                                             10/24/2011
                                                             10/07/2011
                                                             09/29/2011
                                                             09/02/2011
                                                             08/30/2011
                                                             08/26/2011
                                                             08/23/2011
                                                             08/19/2011
                                                             08/16/2011
                                                             08/12/2011
                                                             08/09/2011
                                                             08/05/2011
                                                             06/03/2011
                                                             05/31/2011
111th (2009-2010)......................................      11/12/2010
                                                             11/10/2010
                                                             11/08/2010
                                                             11/04/2010
                                                             11/01/2010
                                                             10/29/2010
                                                             10/26/2010
                                                             10/22/2010
                                                             10/19/2010
                                                             10/15/2010
                                                             10/12/2010
                                                             10/08/2010
                                                             10/05/2010
                                                             10/01/2010
                                                             01/19/2010
                                                             01/05/2010
                                                             10/09/2009
                                                             08/10/2010
110th (2007-2008)......................................      12/30/2008
                                                             12/26/2008
                                                             12/23/2008
                                                             12/19/2008
                                                             12/16/2008
                                                             12/12/2008
                                                             12/05/2008
                                                             12/02/2008
                                                             11/29/2008
                                                             11/26/2008
                                                             11/24/2008
                                                             11/13/2008
                                                             11/10/2008
                                                             11/06/2008
                                                             11/03/2008
                                                             10/30/2008
                                                             10/27/2008
                                                             10/23/2008
                                                             10/20/2008
                                                             10/16/2008
                                                             10/14/2008
                                                             10/10/2008
                                                             10/07/2008
                                                             10/06/2008
                                                             09/05/2008
                                                             09/02/2008
                                                             08/29/2008
                                                             08/26/2008
                                                             08/22/2008
                                                             08/19/2008
                                                             08/15/2008
                                                             08/12/2008
                                                             08/08/2008
                                                             08/05/2008
                                                             07/27/2008
                                                             06/30/2008
                                                             05/29/2008
                                                             05/27/2008
                                                             05/23/2008
                                                             03/27/2008
                                                             03/24/2008
                                                             03/21/2008
                                                             03/18/2008
                                                             02/22/2008
                                                             02/19/2008
                                                             02/15/2008
                                                             01/18/2008
                                                             01/15/2008
                                                             01/11/2008
                                                             01/09/2008
                                                             01/07/2008
                                                             01/03/2008
                                                             12/31/2007
                                                             12/28/2007
                                                             12/26/2007
                                                             12/23/2007
                                                             12/21/2007
                                                             11/29/2007
                                                             11/27/2007
                                                             11/23/2007
                                                             11/20/2007
                                                             11/09/2007
                                                             10/05/2007
                                                             09/14/2007
109th (2005-2006)......................................      01/24/2006
                                                             01/20/2006
                                                            01/03/2006
------------------------------------------------------------------------
Source: CRS analysis of relevant issues of the Congressional Record,
  Senate Calendar of Business, and data from the Legislative Information
  System of the U.S. Congress (LIS).

       I trust that this information meets your needs. If I can be 
     of any additional help, please do not hesitate to contact me 
     at 7-0656 or [email protected].

                          ____________________