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.”