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.

Continue Reading  DOJ’s apologia for Obama recess appointments