• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • Mr. President: Why Refuse to Answer Whether the Justice Department Issued a Legal Opinion?

    President Obama thinks he merely stretched his powers under the Constitution in making so-called recess appointments for three members of the National Labor Relations Board (NLRB) and the Director of the Consumer Financial Protection Bureau (CFPB).  Former U.S. Attorney General Edwin Meese III and counsel Todd Gaziano made clear in their Washington Post editorial of January 6, 2012, that the President violated the Constitution with the purported appointments.

    The President takes an oath before God to preserve, protect and defend the Constitution of the United States.  Most Presidents, before they take an action that — like the purported Obama recess appointments — will test the outer limit of their powers under the Constitution, seek the advice of the Attorney General.  Indeed, Congress has passed a law (28 U.S.C. 511) that requires the Attorney General to give the President legal advice upon request: “The Attorney General shall give his advice and opinion on questions of law when required by the President.”  That statute helps carry out the Constitutional provision that the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”

    A prudent President would have sought the advice of the Attorney General on whether the so-called recess appointments were within the President’s constitutional power.  But, when asked in a White House Press Briefing on January 5, 2012, whether the Department of Justice had provided a legal opinion to the President in advance of the recess appointments, the President’s press secretary would not say.  Even if the White House is going to take the position that it will not release the contents of a legal opinion rendered by the Department of Justice on the ground that the contents are legally privileged from disclosure, it is odd that the White House would refuse to confirm or deny whether such a Department of Justice legal opinion even exists.

    It is reasonable that people are asking the White House whether a Department of Justice legal opinion was issued before the President made the purported recess appointments.  The question of the existence or not of such a legal memo has a bearing on the judgment of the President.   If such a Department of Justice memo exists, then at least the country knows that the President demonstrated at least some measure of prudence and thought in testing the outer limits of the Constitution by seeking in advance legal advice from the country’s chief legal officer.  If, however, no such memo exists, then the country knows that the President was less prudent and thoughtful and did not bother with legal advice from the Attorney General.  The degree of prudence and thoughtfulness of a President in performing his duties is a legitimate subject of public interest — especially for a President asking the people to re-elect him.

    Clients are not bound to follow the advice of their lawyers.  Indeed, the Constitution commands the President himself to “take Care that the Laws be faithfully executed.”  But a wise client seeks the advice of his lawyer before taking a big risk.  And a prudent and thoughtful President seeks the legal advice of the Attorney General before testing the outer limits of the constitutional powers of the presidency.

    So, Mr. President, did the Department of Justice issue a legal opinion in relation to your purported recess appointments to the NLRB and the CPFB before you made them?

    Posted in Featured [slideshow_deploy]

    39 Responses to Mr. President: Why Refuse to Answer Whether the Justice Department Issued a Legal Opinion?

    1. Anon says:

      What about the George W. Bush appointment of John Bolton to the U.N.? Was that not the same thing?

      • James Atkins says:

        No, Congress was in recess at the time of the appointment. The current Congress is not in recess, therefore Obama's appointments are unconstitutional.

        • Anon says:

          Atikins 1, Me 0

        • kathy says:

          And incidentally, when Harry Reid did refuse to recess later in Bush's term (with Obama supporting the move), it was specifically to avoid this kind of appointment, and it worked; Bush abided by the distinction.

      • Any appointments made by any other president are irrelevant. What matters is what the current president is doing. That is the question on the table. Just as your mother taught you when you were a child, "Two wrongs do not make a right", one can't justify unconstitutional acts by one elected official by pointing to or alleging the wrongdoing of another.

        • Guest says:

          It's a matter of precedence, if you're mother let your older brother drive at 16, but said you had to wait until 21 you could use the argument of precedence. So what matters is the Constitution says he can't do it, there is no precedence, but he says he can.

      • wil t says:

        nothing will be done about it , so why bother making a stink about something no one intends to do anything about it just tells Obama that he can do whatever he wants to do because the opposition will just gripe and do nothing.

    2. Richard jones says:

      What evidence do we have that "the rule of law" matters in this administration? Its been pretty clear for sometime that the only standard is that of "desired results."

    3. patrick says:

      do you mean his fast and furious justice department?

      • andy r. says:

        Fast and furious Justice Department? Yet he has yet to lead our nation in investigating anything of importance, such as what led to the financial tidalwave that has plunged the world into a long, but terminal slump? Or getting to the bottom of why we were ever in Iraq? Somehow, the audience here seems to imagine President Obama as some dangerous liberal independent. If he was, as he promised, an emmisary of change then this country would stand a chance. There are no independent actors in Washington, friends. Obama was bought by the corporate class, who also brought him up and along the whole way. These people are groomed over their lifetimes, and a gem like Obama is not a mistake.
        Look, I'm as frustrated as anyone about his performance. I voted for him. He promised to end the (corporate) wars, close anti-American gulag, Guantanamo Bay, and reverse the NSA wiretapping program, and reel in the Patriot act. Instead, he has continued, and spead war, further curtaled civil liberties (he can now have any American arrested in America, and held without rights indefinitly), and kow-towed to the banksters in much the same way Bush and Clinton did.

    4. Dan Kenny says:

      Why would the president consult an Attorney General that knows less about the law than he does??

    5. Peggy Thompson says:

      Let's end the funding for NLB and not fund the consumer protection thing. Along with the EPA and a dozen or so other job killer agencies we can’t afford them anyway. Can’t Congress also stretch their Constitutional role?

      • Diane says:

        Not sure about the NLRB but my understanding is the new czar he appointed to head the Consumer Protection Agency is funded by the FED and congress has no say in the matter. If this is true, it's another example of bypassing congress yet again.

        • NW-PA says:

          Diane is correct – CFPB is funded by the Fed. In addition to changing the current Director to a five-member committee, republicans also want to make the agency subject to Congressional appropriations.

      • John B. says:

        As I understand it, Congress could do that. However, there are two houses of Congress – The House and The Senate. It is unlikely you would get them to agree to anything given the current party split in each house.

      • Andrew says:

        Oh My God…. the law was PASSED BY CONGRESS….. CONGRESS approved of the law the CFPB AND funding for it. And they've been engaged in a tactic that left the Obama administration no choice. They were trying to alter the law AFTER it was passed ONLY because they didn't like it……

        And the second one of you retards can provide a SHRED of evidence that actually suggest the EPA
        "kills jobs" I'll agree to shut it down….. IN FACT enforecing EPA regulations CREATES jobs.
        http://www.scpr.org/blogs/environment/2011/12/09/
        http://www.midwestenergynews.com/2011/11/03/ameri

        But nevermind the facts…. keep to your GOP approved talking point devoid of ANY FACTS.

    6. I would like to hear the answer !!!!

    7. Clyde Williford says:

      This President sure has some balls! The next thing you know he will declare state of emergency and become a dictator? I've live through over 10 president now, I've never heard of such a thing like Mr. Obama. It's like he won't even try to work with both side of the isle?

      • justoneguy62 says:

        Do you remember when he ran for pres he would reach across the aisle? It makes me wonder what aisle he is referring to, cause he sure hasn't reached across to the Republicans in the House and Senate. The mantra for US should be ONE AND DONE.

      • Nikki says:

        He said in an interview that working with both sides IS NOT HIS JOB. He said his job is to come up with ways to make things better for the American people. I think he "misunderstood" the job of the POTUS…or wanted to change it.

      • Matt says:

        To which isle are you referring?

    8. Beverly says:

      The first observation and problem is that "he took an oath before God". He would have to believe in the God of truth and justice and that would be the God of the Bible. The 2nd observation and problem is his oath "to uphold the Constitution". He would also have to believe in the USA and her Constitution. Clearly he does not. The 3rd observation and problem is that if many had done their homework about him ("leaders" and voters alike), he wouldn't be in a position to scoff at God and thumb his nose at America and her laws – Constitutional and otherwise! For some reason, pundits and others that should know better by now are assuming something(s) that isn't/aren't true – that he is a christian (loves the Lord) and that he is a patriot (loves the USA) when clearly he is not and does not! If he ever said so, his actions speak louder than words. So what are "they" missing?! Just sayin'…

    9. niki says:

      Well said, Beverly.

    10. El Conquistador says:

      Dear Leader did it all for us! Anything is moral and just if done in the name of The People!

    11. Bobbie says:

      this man and his many others have this country and us in danger! he was respected enough to be voted in, we did nothing to deserve this disgrace! please, save this country and stop him! this country's law's were set up for any good man who has the ability to reason to lead with principled intent. there was nothing to indicate any different expectation of a person according to skin color! I'm getting sick of the complacency of this man who hasn't the character or positivity or faith in us as a people, to lead this country!

    12. Preston C. says:

      Ok, so we take the position that what he did was unconstitutional. What is the legal recourse? What can the Congress, Senate, We the People, do? Is there legal grounds for impeachment? Is there legal ground to overturn the appointments only? I am not trying to be coy or funny or argumentative. I would seriously like to know what legal recourse there are or are not.

      • vicki says:

        Heritage – I would also like a response for Preston's question – I want to know the same answers.

      • Alex says:

        You would have to litigate it, with the final judgement being the Supreme Court.

        Why do you think they want to pack the court with liberals who share their ideology?

        You can essentially re-write the Constitution with their interpretations, without having to pass and amendment to it.

      • Joyce Luna says:

        I would like for each state to get their business concerning this President straightened out. Take it to Congress and the Senate, do what you have to do to get this Nation back on track and our Constitution organized in such a way as that all people understand it or the legal terms involved to make it right.
        We are in a big mess….our liberty is at stake…………Please Congress do something! Who will lead us?
        We have a judge in Alabama who has stuck his head out to help so the rest of you who are qualified to do so please do it soon as possbible!
        Joyce Luna

    13. Stuart says:

      Wonder why he didnt run this by his bud, Erik Holder, our highly regarded AG? I'm sure Erik would have given him the answer he wanted!

    14. Brian says:

      He's President, that's like being king. B.O. can do anything he wants with impunity, and nobody does anything about it.

    15. Ellis Islander says:

      Ask yourselves why does an American President give himself, by Executive Order, the right to arrest and imprison American Citizens if he was not going to use that power? A citizen army as big as our National army is what Obama called for in his campaign.Now he has the power to create that /his army and also the power to call for marshal law if things don't go his way at election time! History repeats itself when your children are not taught it!

    16. Spiritof76 says:

      It is great to keep pointing out that the president operates beyond the Constitution. What is the remedy? Wait until the next election when a large segment of our population has no idea of what US founding is based on and the reasons for the Constitutional restraints? We have very little dialogue on the solutions.

    17. matt says:

      this man needs to go one way or the other. resign which we now he will not do or someone needs the guts to strart impeachment. you cannot side step the constitution!

    18. Lloyd Scallan says:

      How can anyone with half a brain suggest that Obama asked the opinion of this AG, Eric Holder, to give a legal opinion on anything? Doesn't he realize Obama is now officallly a dictator, the first in this nation's history. He doesn't want any opinion, other than his own. And even if he did get an opinion (as in the case of his economical committee) he just ignores it.

    19. RennyG says:

      Some of the above comments are well taken. But you know what, doesn't make any difference because no one is going to do anything. "Set him in his place!!" I don't understand?? We better be looking to our Lord for help because no one down here is going to do anything!!
      Habakkuk 3:2 – I have heard all about you Lord and am filled with awe by the amazing things you have done. In this time of our deep need, begin again to help us as you did in years gone by. Show us your power to save us. In your anger, remember your mercy! "We need help!!"

    20. Jeanne Stotler says:

      Back in 1770's we didn't have a well trained army, they were farmers and business orders that drilled in the park after dark, today there are thousands of former Military veterns, well trained and able to hold their own. We need now to form Militias to fight off the oppression that will be reined on us by BHO. My belief is that he will use this act to imprison those of us who oppose him, if we cannot vote than he will be elected. This is if he doesn't suspend the elections and appoint himself POTUS for life first.

    21. Andrew says:

      Excuse me David, You said "If, however, no such memo exists, then the country knows that the President was less prudent and thoughtful and did not bother with legal advice from the Attorney General"

      Okay here you go: A memo from the Justice Department from Jan 6 (http://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf) the day after the recess appointments were made.

      "But in a Jan. 6 memo, Virginia A. Seitz, the assistant attorney general for the Office of Legal Counsel, wrote that even though the Senate held pro-form sessions from Jan. 3-23, “those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to ‘receive communications from the President or participate as a body in making appointments.’”

      So as soon as Congress returns to Washington from their "BREAK" they can get back to work showing us all how NOT in recess they've been over the last month….

    22. Joseph S says:

      My guess is that someone forgot to tell the Press Secretary about it. Not a cover-up, just a Press Secretary desperately trying to deal with a question he doesn't know the answer to…

      That said, Mr. Addington's sudden insistence on executive transparency seems a little surprising considering that he took a different position when he served during the Bush administration, according to various insiders' memoirs. I'd be interested in hearing whether he considers the situations different or whether he has changed his mind, and if so, why.

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.

    ×