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January 12, 2012 4:40 PM OLC backs recess appointments

By Steve Benen

When President Obama announced his recess appointments last week, Republicans were not only outraged by the White House’s move on political grounds, they also argued that the appointments were in conflict with the law. As the GOP sees it, so long as lawmakers maintained sham sessions, Congress wasn’t technically in “recess,” so recess appointments weren’t an option.

Republicans demanded a legal analysis from the Office of Legal Counsel. As it turns out, the OLC had already examined the issue, though I rather doubt Republicans will like what the officials came up with. (The OLC advises the executive branch on whether an administration’s efforts are legally permissible or not.)

In this case, Assistant Attorney General Virginia Seitz wrote a 23-page OLC opinion on the recess appointments, and as Adam Serwer explained, the office’s attorneys were unmoved by the “pro-forma” charade.

Seitz writes that “while Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess.” Seitz points out that legislators have frequently referred to times of prolonged absences as “recesses,” even if Congress had not technically adjourned. (As Jonathan Bernstein noted, Tennessee Republican Rep. Diane Black said the president’s appointments were unconstitutional because Congress was not in recess, before complaining that the nominees were put forth “a mere two days before the Senate recessed for the holiday.”) Even the administration’s supporters however, have generally acknowledged that the legal questions here are a close call, and Seitz acknowledges there are “substantial arguments on each side.”

“[The opinion] is admirably forthright and candid about the closeness of the question and the arguments on the other side,” says Marty Lederman, a former attorney with the Office of Legal Counsel who, as counsel to Senator Ted Kennedy, had argued that such appointments were not constitutional. “It doesn’t hide anything.” […]

The opinion relies on previous memos written by Republican and Democratic officials, and it does marshal some strong historical evidence for its interpretation. The opinion quotes Alexander Hamilton writing that the recess clause of the Constitution is triggered when the Senate is not “in session for the appointment of officers,” a sentiment echoed by a Senate Judiciary Committee letter from 1905 informing President Theodore Roosevelt about the limits of his authority to make recess appointments.

The gist of the conclusion is pretty straightforward: if senators aren’t in the Senate and the chamber isn’t in a position to consider nominees, then the White House can make recess appointments. Some top Republican lawyers from the Bush/Cheney administration effectively made the same argument in October.

Republicans who’d hoped for OLC backup are now outraged all over again. In a hyperbolic tirade, Sen. Chuck Grassley (R-Iowa), the ranking member on the Senate Judiciary Committee, said the administration’s position “fundamentally alters the careful separation of powers between the executive and legislative branches.”

The Republican senator added that President Obama, by exercising a power given to him by the Constitution, is trying to “circumvent … the Constitution.”

Michael Gerhardt, a constitutional law professor at UNC Chapel Hill, argued that a new precedent has effectively been set, telling Adam, “This is one opinion that is likely to be followed by future presidents. It’s not easy to overturn opinions of the OLC, as the history of the [Bush-era] Torture Memos demonstrate.”

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.

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  • Danp on January 12, 2012 4:46 PM:

    By not allowing votes on any candidate for the CFCB or NLRB, it is Congress that is circumventing the constitution. This issue won't be settled, however, until the Koch Brothers are in prison. May that be soon!

  • SYSPROG on January 12, 2012 4:58 PM:

    Yeah I know...USUALLY it's the Republicans that f' with the rules and then precedent is set. But THIS time the Dems decided SCREW IT...and oh dear...that poor fan.

  • Rathskeller on January 12, 2012 5:02 PM:

    Sysprog, as you should know, presidents of both parties have made recess appointments over decades. There is substantial history backing Obama's action.

    And has been noted elsewhere, Congress's inability to pass a resolution condemning these appointments until they "return from recess" indicates exactly how farcical and meaningless these pro forma sessions are. if Congress was in session, it would have acted, instead of whining to Fox news.

  • Redshift on January 12, 2012 5:08 PM:

    In a hyperbolic tirade, Sen. Chuck Grassley (R-Iowa), the ranking member on the Senate Judiciary Committee, said the administration’s position “fundamentally alters the careful separation of powers between the executive and legislative branches.”

    You know, what, Chuck? Republicans “fundamentally altered the careful separation of powers between the executive and legislative branches” when they decided to block appointments not because they had any complaint with the nominee, but because they wanted to prevent duly enacted laws (such as the Consumer Financial Protection Agency) from being implemented. If Congress doesn't want an agency to exist, the Constitution gives them the power to vote to abolish it, but it is utterly contrary to the separation of powers for them to use "advise and consent" to undermine the laws of the country.

  • T2 on January 12, 2012 5:09 PM:

    I would suspect Obama had a good idea that such a ruling would be made. The "charade" clearly intended to thwart a process (recess appointments) that has been done historically. Will this ruling make future appointments of this nature more common, I hope so. Because when either side of the isle creates a blockade of appointments solely for the reason of causing governmental disfunction, it shouldn't be tolerated.

  • Tom Dibble on January 12, 2012 5:18 PM:


    With regards to precedent and Executive/Legislative balance of power, that certainly is a bell that can't be unrung. The "gentleman's agreement" to pretend pro-forma sessions have any legal binding on the President is done for.

    On the one side, this is a huge power grab for the Executive. Executive power waxes and wanes over time, and this is one large bump "up".

    On the other hand, though, it immediately follows a huge power grab for the Senate, which was the (uncontested and IMHO uncontestable) assertion (by the minority, no less) that it can reverse legislation by keeping nominees from the offices which enforce that legislation. Congress has always "had" that power, but now our Party of Obstructionism decided that it should use it. Another "gentleman's agreement" shot all to hell.

    Overall, one of these two power grabs allows for a more functional and active government, and the other allows for a less functional government. So, I think in terms of balance of powers between the two branches, we're at about a net standstill. But, overall, the government is more likely to be active in this new world than before.

    Congratulations, Republicans: you have paved the way for a more progressive and "activist" government for all your willful obstructionism! Enjoy the next thirty years!

  • Neil B on January 12, 2012 5:33 PM:

    As far as I'm concerned, the Senate was "not really" in session because they did not have the quorum specified in the Constitution for doing business. "Pro forma" be damned, the whole point of such expressions is a wink that it isn't quite real. Other factors are secondary (I'm surprised others didn't pick up, or did my ctrl-f fail me?) Also, there's the role of the Majority Leader, and the VP, both Democrats, to consider - they would back POTUS. But beware, Repugs may try to run this by the corrupt SCOTUS.

    heh, craptcha "complicated intingd", such fun, such aggravation

  • Neil B on January 12, 2012 5:52 PM:

    And, what's wrong with this picture: "Sen. Chuck Grassley (R-Iowa), the ranking member on the Senate Judiciary Committee..." It's time to get off the seniority tenure track with this stuff, and try a new system for picking "ranking members."

  • rrk1 on January 12, 2012 5:57 PM:

    The Senate is an anachronistic, ossified body that needs to be abolished. We need a parliamentary form of government, which has to stand for reelection when it becomes obstructionist. Nothing short of a major reorganization will save this country from a military dictatorship.

  • golack on January 12, 2012 6:32 PM:

    Didn't a Republican president use a recess appointment to appoint someone explicitly rejected by the Senate???? And that was ok????

    And somehow the ongoing sham of the "pro-forma" sessions used almost continuously throughout this presidency solely to undermine the administration is ok??? Pleeease...

  • Peter C on January 12, 2012 6:55 PM:

    I'm sure he'd say that a President's appointees all deserved a prompt 'up or down vote' while the Senate was in session. I'm sure remember "up or down!" as a chant not too long ago ... Perhaps he'd say that if the President wanted to install a walrus as UN Ambassador, that he should be afforded the privledge of picking his own team.

    I've even heard that 'if a President does it and does not get impeached, then it must be Constitutional'. We are still at war in Afghanistan, right?

    Time for a montage, I'd say.

    Rules which only apply to Democrats are not rules, they're a straight jacket

  • golack on January 12, 2012 7:13 PM:

    My bad--finally got around to looking up info. Bolton's appointment by Bush as UN ambassador wouldn't be approved by the committee, even with Republican control, so that step was skipped. However he was never voted on by the full Senate-blocked by Democrat filibuster. His re-appt., while Republicans were still in charge, would have been rejected by the committee, so was withdrawn and he just finished out his recess appt. Not being able to get passed out of committee is not the same as rejection by the full Senate. I stand corrected.

  • Neil B on January 12, 2012 7:27 PM:

    BTW additional issues were brought up at Sarah Binder's column at http://www.washingtonmonthly.com/ten-miles-square/2012/01/is_the_president_playing_fair034525.php, check that out for some good rebuttal of criticism of Obama's action (e.g., as per Dodd-Frank "confirm by Senate" clause.)

  • Neil B on January 12, 2012 7:53 PM:

    Note this, interesting:
    "Section 3 - State of the Union, Convening Congress

    He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he 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; ...."

    Wow, he may adjourn to to such time as he shall think proper ...

  • Patango on January 12, 2012 9:23 PM:

    Redshift on January 12, 2012 5:08 PM:

    ""In a hyperbolic tirade, Sen. Chuck Grassley (R-Iowa), the ranking member on the Senate Judiciary Committee, said the administration’s position “fundamentally alters the careful separation of powers between the executive and legislative branches.”"

    You nailed it , Grassley is my senator, and as a term limits t gop cry baby member , he talks like he is 115 ,and has been in office for as many years , as an honest person he went on tv and told his constituents we must stop the senate from passing the consumer protection law , after it was already passed , I am appalled at how these people talk to their voters , and it is only getting worse ...

    We voted in change after grassley helped destroy our economy , now these people think they can just get up as the minority , back stab, and lie to the american people , and the press just sits there with a stupid look on their face when they sell this bs , the people are going to have to stand up on their own , because the majority of institutions out there are pretty much against us doing just that ....Wall st , corporate press , u s chamber , the gop , it is us against them folks....

  • jonas on January 12, 2012 11:22 PM:

    I don't see this as setting any malicious precedent. All the opinion states is that these bs "pro forma" sessions don't count as the Senate really being "in session" when it comes to recess appointments. If the majority party is really serious about blocking some appointment, the senators should stay there and keep it in session. Same with filibusters. You should really have to stand there and hold the floor if you don't want a vote to come up.

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