Grassley Not Buying DOJ’s Non-Recess Appointment Apologia

Calling the president’s illegal non-recess appointments “an escalation in a pattern of contempt for the elected representatives of the American people,” Sen. Chuck Grassley (R-IA), ranking Republican on the Judiciary Committee, dismissed a Justice Department memo on Thursday that sought to lend retroactive constitutional weight to the president’s move.

Grassley hinted at Senate “action to check and balance” the president’s power grab, though he declined to go into specifics.

The DOJ Office of Legal Counsel’s memo, also debunked by Heritage’s Todd Gaziano, claims that pro forma Senate sessions do not preclude the president from unilaterally appointing federal officials. That legal opinion contradicts statements by former Obama Administration Solicitor General Elena Kagan – now a Supreme Court justice – and her deputy, Neal Katyal.

The memo was released on January 6, two days after Obama non-recess-appointed Richard Cordray as head of the Consumer Financial Protection Bureau, meaning the president did not wait for DOJ’s official legal opinion before moving forward with the appointments.

Here’s what Grassley had to say in a news release:

The Justice Department opinion is unconvincing.  Its conclusion is at odds with the text of the Constitution and the administration’s own previous statements.  It fundamentally alters the careful separation of powers between the executive and legislative branches that the framers crafted in the Constitution.  It relies on no Supreme Court decision and many conclusions are unsupported in law or the Constitution.  It recognizes that the courts might well disagree.  And it flies in the face of more than 90 years of historical practice.  Taken together with a laundry list of other assertions of the power to act without Congress, this is clearly an escalation in a pattern of contempt for the elected representatives of the American people.  The Senate will need to take action to check and balance President Obama’s blatant attempt to circumvent the Senate and the Constitution, a claim of presidential power that the Bush Administration refused to make.

Check out Gaziano’s response for a more detailed look at DOJ’s legal argument. Here’s an excerpt:

The not-too-deft argument in the OLC memo is that the President is free to take the Senate at its word that it would not conduct business during any period it sees fit except that the basis for that assumption also applied from Dec. 17 to Jan. 3. With unanimous consent, such business clearly can and was conducted during the period of time that OLC ignores.  Moreover, those facts defeat the repeated finding in the opinion that the Senate is not available to receive messages from the President and act on them.  The action on Dec. 23 proves beyond any doubt that they can receive such messages, loudly and clearly, and can act when they want to do so.  Their desire not to act cannot be converted so easily into an inability to do so.

Even more brazenly, the opinion states on page 21 that: “even absent a Senate pronouncement that it will not conduct business, there may be circumstances in which the President could properly conclude that the body is not available to provide advice and consent for a sufficient period to support the use of his recess appointment power.”  There is no limit on this open-ended assertion of authority of the President to determine when the Senate could properly act on his nominees.