Two days after President Obama’s January 4 recess appointments to the NLRB and the CFPB, DOJ’s Office of Legal Counsel (“OLC”) issued a 23-page opinion (not publicly released until January 12) on the legality of those appointments (the “Opinion”). Written against a backdrop of pro forma Senatorial sessions which began in 2007 in the Bush administration and continue during the current administration, the Opinion addresses two issues: (1) whether the President had authority to make recess appointments during the recess that included January 4, 2012, and (2) whether the pro forma sessions disabled him from making such recess appointments.

To its credit, the Opinion does now and then acknowledge uncertainties arising from a plethora of conflicting Attorney General opinions and the lack of judicial guidance. Nevertheless, the Opinion concludes that (1) the President has authority to make an intra-session recess appointment with respect to a position created nearly 18 months previously; and (2) “[t]he text of the Constitution and precedent and practice thereunder support the conclusion that the convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a ‘Recess of the Senate’ under the Recess Appointments Clause.”

Neither the constitutional text nor precedent and practice are quite so clear on the subject, however. In a December 19, 2011 blog post, I outlined some of the legal problems relating to Issue #1 in particular. Further detail on these fascinating constitutional issues can be found in the “More” section below. The OLC’s resolution of Issue #2 may well turn out to be the correct answer, but it does suffer from some inconvenient factual and legal problems.

The Opinion concludes that the President could determine that the Senate was in recess and that a 20-day recess was sufficient for him to invoke his authority under the Recess Appointments Clause. Since Senate majority leader Harry Reid only inaugurated pro forma sessions in 2007, there is obviously no genuine established “precedent and practice” under the Constitution with respect to sessions of this type, notwithstanding the OLC’s assertion to the contrary. Further, allowing the President to decide when the Senate is in recess seems to contravene both Art. I, § 5, cl. 2 (vesting in each House the power to “determine the Rules of its Proceedings”) and Art. I, § 5, cl. 4 (forbidding either House of Congress to adjourn for more than three days without the consent of the other; no consent from the House of Representatives was either given or sought here).

More problematic is that, contrary to assertions in the Opinion, the Senate actually did work during one of the pro forma sessions. On December 23, Harry Reid arranged for passage of a payroll tax bill and communicated with both the House and the President on that legislation. The Opinion makes no attempt to harmonize this conduct of important Senate business during a “pro forma” session it views as having no legal significance.

Another problem is an inconsistent DOJ position taken during the same Administration. Elena Kagan, Obama’s own Solicitor General (now Associate Justice of the Supreme Court), submitted a letter-style argument to the Supreme Court in New Process Steel L.P v. NLRB, 130 S. Ct. 2635 (2010), in which DOJ took the position that “the Senate may act to foreclose [recess appointments] by declining to recess for more than two or three days at a time over a lengthy period.” OLC seeks to distinguish the context of this letter, but it nonetheless presents a potentially embarrassing incongruity. Furthermore, if these particular recess appointments are reviewed by the Supreme Court, Justice Kagan will have to recuse herself, which would deprive Mr. Obama of an otherwise potentially favorable vote.

Issue #1:

● Interpretation of “Vacancy” in the Recess Appointment Clause: The Opinion does not expressly consider this issue. Yet, there are potentially different outcomes for the NLRB appointees on the one hand and the CFPB appointee on the other.

○ NLRB positions have existed since the New Deal and have been filled by presidential nominees with the advice and consent of the Senate. Expiration of a Board member’s term or resignation from the Board thus leaves a genuine vacancy.

○ In contrast, no one has ever before occupied the office of Director of the CFPB. While literally a “vacancy” is any empty post or position, in common usage (e.g., a vacancy on the Supreme Court, a vacancy in the IT Department), it connotes a position that was previously occupied but is now empty. This is consistent with the purpose of the Recess Appointments Clause, which was to provide emergency authority for the President when a vacancy “happened” during a recess of the Senate. Arguably, therefore, with a brand new agency like the CFPB, there is no “vacancy” to be filled. (But cf. the 1792 Edmund Randolph interpretation, discussed below, which reaches the opposite conclusion on “vacancy” but nevertheless concludes that no Recess Appointment could be made).

● Interpretation of “Happen” in the Recess Appointment Clause: Must the Vacancy occur during the Recess or may it antedate the Recess?

○ While acknowledging that both Attorney General interpretations and judicial interpretations have endorsed both possible answers, the OLC Op. takes the position that the latter is the more widely accepted interpretation. Certainly that is true of 20th century interpretations.

○ In 1792, during George Washington’s administration, the first Attorney General, Edmund Randolph, responded to an inquiry as to whether a recess appointment could be made to the position of Chief Coiner of the Mint, a newly created position for which no nomination had been made before the Senate recessed. This is the closest fact pattern to the CFPB Director position among the myriad Attorney General opinions. Randolph concluded that the vacancy occurred on the day the office had been created, and thus could not be filled with a recess appointment because the vacancy existed prior to the Senate’s recess. He based his opinion on the text of the Clause and on the “spirit of the Constitution,” declaring that the Recess Appointments Clause must be “interpreted strictly” because it serves as “an exception to the general participation of the Senate.”

○ There has been no definitive interpretation by the Supreme Court.

● Interpretation of “Recess” in the Recess Appointments Clause:

○ The actual language in the Clause is “the Recess of the Senate” (emphasis added).

○ The original understanding of the Founders was that the Clause was a supplement to the Appointments Clause that would come into play only when Congress was adjourned between sessions. See, e.g., Alexander Hamilton in The Federalist No. 67.

○ The use of the definite article in the Clause supports that interpretation. The Constitution does not say “a Recess of the Senate.”

○ Under this textual interpretation and the evidence of the original understanding, only intersession recess appointments, not intrasession, may be made by the President. That would invalidate all of the January 4 appointments.

Issue #2: Dueling Policy Perspectives

● According to the Opinion, the Senate should not be allowed to use pro forma sessions to “disrupt[] the proper balance” between the Executive and Legislative branches by preventing the President from “accomplishing . . . Constitutionally assigned functions.”

● On the other hand, it is also true that the President should not be allowed to withhold a nominee in order to deprive the Senate of its “advise and consent” function under the Appointments Clause.

Finally, it is worth noting the irony of the Supreme Court NLRB case, in which then-Solicitor General Kagan submitted an argument on pro forma sessions incompatible with that taken in the Opinion, being the precursor to the NLRB case now pending in federal district court in which plaintiffs are raising the invalidity of Obama’s three NLRB recess appointees.