TITLE: Commodity Futures Trading Commission, B-288581, November 19, 2001
BNUMBER: B-288581
DATE: November 19, 2001
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Commodity Futures Trading Commission, B-288581, November 19, 2001
Decision
Matter of: Commodity Futures Trading Commission
File: B-288581
Date: November 19, 2001
DIGEST
Pursuant to 7 U.S.C. S: 2(a)(2)(A), in the event a successor is not
appointed and qualified, Commodity Futures Trading Commission (CFTC)
Commissioner Spears may continue to serve until the expiration of this
current session of Congress. The Commissioner may not serve beyond the
adjournment sine die of the current session of Congress irrespective of
any reserved right to reconvene, or, in the absence of an adjournment sine
die, when by operation of law the next session of Congress begins.
DECISION
The Commodity Futures Trading Commission (CFTC) has requested an opinion
concerning when its appropriations will no longer be available to pay the
compensation of Commissioner David D. Spears, due to the expiration of his
holdover term. In the event a successor is not appointed and qualified,
the applicable statutory holdover provision provides that the Commissioner
may continue to serve until the expiration of the current session of
Congress. 7 U.S.C.
S: 2(a)(2)(A). For the reasons discussed below, the Commissioner's
holdover term will expire upon the adjournment sine die of the current
session of Congress pursuant to a concurrent resolution, irrespective of
any reserved right to reconvene, or, in the absence of a resolution
providing for an adjournment sine die, when by operation of law the next
session of Congress begins.
BACKGROUND
Commissioner Spears's fixed 5-year term of office ended April 15, 2000,
during the second session of the 106th Congress. The Commissioner has
continued to serve since that time pursuant to a holdover provision which
provides that:
*Each Commissioner shall hold office for a term of five years and until
his successor is appointed and has qualified, except that he shall not so
continue to serve beyond the expiration of the next session of Congress
subsequent to the expiration of said fixed term of office . . . .*
7 U.S.C. S: 2(a)(2)(A).
The CFTC indicates that Commissioner Spears's successor will not be
nominated by the President and, with the advice and consent of the Senate,
appointed prior to the end of the current session of Congress. Therefore,
the Commissioner's holdover term must end upon the expiration of the
current session of Congress. See 57 Comp. Gen. 213 (1978) (CFTC may
continue to compensate Commissioner whose fixed term expired during first
session of 95th Congress until expiration of the second session of the
95th Congress, or appointment and qualification of successor, whichever
occurs first). Although we considered this statutory holdover provision,
formerly codified at 7 U.S.C. S: 4a(a), in 57 Comp. Gen. 213, we did not
address when a session of Congress expires within the meaning of the
statute.
ANALYSIS
It is well established that a session of Congress is brought to a close
through either (1) a concurrent resolution of both houses adjourning the
session sine die[1] or
(2) operation of law, immediately prior to the beginning of the next
session of Congress. Ashley v. Keith Oil Corp. et al., 7 F.R.D. 589, 590
(1947) (effective date of amendments to federal rules which were not to
take effect until after the close of the session of Congress). See also
Deschler's Precedents, H.R. Doc. No. 94-661, Ch 1,
S: 2, at 8 (1976) (the final adjournment of a session is usually
accomplished by a sine die adjournment resolution but can also be
accomplished by the commencement of the next session of Congress,
referring to January 3, 1941, as the end of the third session of the 76th
Congress as well as the beginning of the first session of the 77th
Congress).
For example, the second session of the 100th Congress expired on October
22, 1988, pursuant to the concurrent resolution adjourning the Congress
sine die: *Resolved by the House of Representatives (the Senate
concurring), That when the House and Senate adjourn on Saturday, October
22, 1988, they stand adjourned sine die.* H.R. Con. Res. 398, 100th
Cong., 102 Stat. 4934 (1988). In accordance with 7 U.S.C. S: 2(a)(2)(A),
a holdover term expiring at the end of the second session of the 100th
Congress pursuant to 7 U.S.C. S: 2(a)(2)(A) would have expired on October
22, 1998.[2]
Compare this to the first session of the 104th Congress which expired
prior to noon, January 3, 1996, pursuant to operation of law. According
to section two of the Twentieth Amendment to the United States
Constitution, a new session of Congress begins at noon on January 3rd of
each year.[3] As a result, a previous session of Congress cannot continue
beyond that time. Since there was no concurrent resolution providing for
an adjournment sine die of the first session of the 104th Congress,[4]
that session ended prior to noon, January 3, 1996, by operation of law.
110 Stat. 1 (1996). In accordance with 7 U.S.C. S: 2(a)(2)(A), a holdover
term expiring at the end of the first session of the 104th Congress would
have expired prior to noon on January 3, 1996.
With regard to the expiration of a session of Congress by operation of
law, the Twentieth Amendment permits Congress to provide for a new session
to begin on a date later than January 3rd. If Congress has done so (but
has not adjourned the current session sine die), then the current session
will expire immediately prior to the date set by Congress for commencement
of the next session. Ashley, above, at 591 (joint resolution provided
that the second session of the 80th Congress would begin at noon on
January 6, 1948, which, in the absence of an adjournment sine die, would
cause the first session to terminate as of 11:59 a.m. on January 6,
1948).
The issue for CFTC arises in the event that the current session of
Congress adjourns sine die pursuant to a concurrent resolution which
authorizes congressional leaders to call Congress back into session before
the next session of Congress convenes. In recent years, Congress has
almost routinely included this recall authority in the concurrent
resolutions providing for the final adjournment. See, e.g., H.R. Con. Res.
230, 104th Cong., 110 Stat. 4495 (1996). The recall language used in H.R.
Con. Res. 230 is typical of the language Congress frequently uses:
*Resolved by the House of Representatives (the Senate concurring), That
when the House adjourns on the legislative day of [October 2, 3rd or 4th,
1996], on a motion offered pursuant to this concurrent resolution by the
Majority Leader, or his designee, it stand adjourned sine die, or until
noon on the second day after Members are notified to reassemble pursuant
to section 2 of this concurrent resolution, and that when the Senate
adjourns on [October 2, 3rd or 4th, 1996], on a motion offered pursuant to
this concurrent resolution by the Majority Leader, or his designee, it
stand adjourned sine die, or until noon on the second day after Members
are notified to reassemble pursuant to section 2 of this concurrent
resolution.
*Sec. 2 The Speaker of the House with the Majority Leader of the Senate,
acting jointly after consultation with the Minority Leader of the House
and the Minority Leader of the Senate, shall notify the Members of the
House and Senate, respectively, to reassemble whenever, in their opinion,
the public interest shall warrant it.*
The CFTC questions what impact an adjournment resolution that includes
recall authority would have on the expiration of Commissioner Spears's
holdover term. To our knowledge, this is an issue of first impression. In
our view, there are only two logical resolutions. One is to conclude that
the holdover term expires upon the date the Congress adjourns sine die,
despite the inclusion of recall authority in the concurrent resolution.
The other is to conclude that the holdover term expires on January 3,
2002.
We find no suggestion in the holdover provision itself or in its
legislative history that the retention of recall authority in a concurrent
resolution adjourning the Congress sine die transforms the *expiration of
the next session of Congress* from the date of adjournment sine die to
January 3rd. While section two of the Twentieth Amendment can operate to
establish the ending date for a session of Congress, it will only do so
when that Congress has not agreed by resolution to adjourn sine die. See
Ashley, above, at 591. See also Dreschler's Precedents, supra, Ch 1, S:
2, at 8. Also, to read the statutory language to mean, in effect, January
3rd would be to ignore Congress's prerogative to schedule its adjournment
and thus to identify the expiration date of its sessions. Without some
affirmative expression of congressional intent otherwise, we are unwilling
to overlook Congress's prerogatives in our interpretation of the holdover
provision. As one court has explained, the purpose, generally, behind a
holdover provision like the CFTC's is to limit the duration of the
holdover period so that the President and the Senate are forced to move
quickly on replacements. See Swan v. Clinton, 100 F.3d 973, 984, fn 7
(D.C. Cir. 1996). We conclude, therefore, that the better interpretation
of the phrase, *expiration of the next session of Congress,* when viewed
in the context of an adjournment sine die with recall authority, is the
date of adjournment sine die that Congress specified in the concurrent
resolution.
Utilizing recall authority is an extraordinary measure to address crises
or emergency situations, or, in the words of the 1996 concurrent
resolution, *whenever . . . the public interest shall warrant it.* See
Congressional Research Service, *Lame Duck Sessions, 74th-106th Congress,*
98-872 GOV, at 2 (2001). Despite the repeated inclusion of the recall
authority in sine die adjournment resolutions over the years, Congress has
apparently utilized it only once in recent memory, namely, to permit the
House to perform duties incident to the impeachment of President
Clinton.[5] If Congress adjourns sine die with recall authority and the
leadership, in fact, recalls Members, the resulting meeting is viewed as a
continuation of the then-current session of Congress, not a new session.
As a result, the current session of Congress would expire some time after
the initial sine die adjournment date. However, to focus our analysis on
an unlikely contingency would permit the exception to drive the
application of the statute. In that event, the risk for CFTC is that it
might subject itself, in those typical years when the recall authority is
not utilized, to charges that any action taken by the Commission after the
sine die date is invalid.
CONCLUSION
In our opinion, the inclusion of recall authority in an adjournment sine
die resolution does nothing to fundamentally change the consequence of the
resolution, at the time of its adoption, to end a session of Congress.
While the recall authority certainly permits a reassembly of a session of
Congress, presumably such an event is an uncertainty. Accordingly, the
Commissioner's holdover term will expire upon the adjournment sine die of
the first session of the 107th Congress as established by concurrent
resolution (irrespective of any reserved right to reconvene), or, in the
absence of a concurrent resolution setting an adjournment sine die date,
immediately prior to the beginning of the second session of the 107th
Congress (January 3, 2002, or as otherwise provided).
Anthony H. Gamboa
General Counsel
------------------------
[1] Adjournment sine die literally means adjournment without day, a
reference to the fact that the Houses are adjourning until the next
session of Congress and not to a specified date within the current session
of Congress. See Black's Law Dictionary 1390 (7th ed. 1999) and
Congressional Research Service, *Lame Duck Sessions, 74th-106th Congress,*
98-872 GOV, at 1 (2001).
[2] The CFTC holdover language at issue here is similar to the language
which establishes the length of recess appointments in the Constitution
and which provides for the expiration of such appointments *at the End of
[the Senate's] next Session*. See U.S. Const. art. II, S: 2, cl. 3. In
this context, a recess appointment expires upon an adjournment sine die
pursuant to a concurrent resolution. See United States v. Woodley, 751
F.2d 1008 (9th Cir. 1985) (district court judge continued to sit pursuant
to his recess appointment until December 16, 1981, when the 97th Congress
ended its first session), cert. denied 475 U.S. 1048 (1986). See S. Con.
Res. 57, 97th Cong., 95 Stat. 1781 (1981). See also 28 Comp. Gen. 121
(1948) (concurrent resolution providing for recess, not adjournment sine
die, does not terminate that session of Congress for purposes of the
recess appointments clause); B-122867, July 13, 1955 (recess appointment
of military officer expired on August 3, 1953, when Congress adjourned
sine die pursuant to S. Con. Res. 53, 67 Stat. B134 (1953)); 41 Op. Att'y
Gen. 463, 469-71 (1960) (concurrent resolution providing for recess, not
adjournment sine die, does not terminate session of Congress for purposes
of the recess appointments clause, citing 28 Comp. Gen. 121).
[3] *The Congress shall assemble at least once in every year, and such
meeting shall begin at noon on the 3rd day of January, unless they shall
by law appoint a different day.* U.S. Const. amend. XX, S: 2.
[4] S. Con. Res. 32, 104th Cong., 109 Stat. 1035 (1995), merely provided
for adjournment times for the House and Senate, but not an adjournment
sine die.
[5] Both houses of the second session of the 105th Congress adjourned sine
die on October 21, 1998, pursuant to H.R. Con. Res. 353, 105th Cong., 112
Stat. 3699-3700 (1998). Pursuant to recall authority provided the House
leadership (an additional recall authority was also provided for
reassembly of both houses), the House reassembled on December 17th to
address matters relating to the impeachment of President Clinton. Having
completed its business, the House again adjourned sine die on December 19,
1998. See 112 Stat. 1 (1998).