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  • Whitewash on Illegal Appointments Won't Work

    The Obama Administration’s 23-page Office of Legal Counsel (OLC) opinion rationalizing illegal appointments the President made last week, released this morning, falls far short of its intended goal. The opinion makes claims that are demonstrably false and is at times, frankly, embarrassing. Apart from failing to prove that President Obama’s unprecedented act was constitutional, the opinion also  raises further questions about the legal advice process and the competence of those involved.

    The opinion, dealing with the President’s illegal appointments to the National Labor Relations Board (NLRB) and Consumer Financial Protection Bureau (CFPB) on Jan. 4, is simply not convincing (even less so to those of us familiar with the relevant authorities) and should trouble anyone when the implications of the opinion are considered.

    Most of the lengthy legal opinion is not on point, since it addresses the use of the recess appointment power when the Senate really is in recess for 21 days or so.  As a constitutionalist and former counsel in OLC, I agree with much of the early, boilerplate analysis that was developed over the past 90 years.  Even so, much of it would have conflicted with then Senator Obama’s anti-executive branch views.  We have since learned that the new boss is far more of an executive power extremist than the old boss or the officials he previously criticized.

    It should be noted, however, that the opinion is dated Jan. 6, and while it supposedly “memorializes” earlier information provided to the White House Counsel, it was written to justify the decision taken and does not fairly consider the much stronger case against the legality of the Jan. 4 appointments that were made when the Senate was not in recess of sufficient duration.  The main problem with the opinion is the repeated, and demonstrably false, claim that the Senate could not conduct business during these pro-forma sessions at issue.

    Animating that central problem is the artificial premise of the question presented, which only considers the period from Jan. 3 through Jan. 23, and argues over and over again that the Senate could not conduct business during that period. (Note from DOJ to Sen. Harry Reid:  don’t provide consent to conduct any business during that period.)  But the pro-forma sessions began when most senators left town on Dec. 17.  Why not mention the even longer period of time, since that might ordinarily help the President’s argument?  The answer is on page 21, where the opinion has to acknowledges that twice during such “pro-forma” sessions, the Congress actually passed bills that became law (on Aug. 5, 2011 and Dec. 23, 2011).  Since the President signed these bills into law, it really had no choice but to admit that those pro forma sessions mattered.

    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.

    The opinion also does not fairly address the House’s refusal to provide the Senate permission to adjourn under Art. I, sec. 5, cl. 4 of the Constitution for more than three days or the effect of the clause of the Constitution that each House can determine its own rules, Art. I, sec. 5, cl. 2. The opinion’s citation of authority for the latter distinction involves the fundamental rights of individuals, and is clearly not on point.

    The opinion also argues that the Senate has not acted in some ways as if its “recess” was really a series of shorter breaks.  The opinion does not seriously address more important counter-evidence relating to the Senate’s practice of returning or not returning nominations during recesses of varying lengths, which would support the conclusion it does consider the pro-forma sessions constitutionally significant for its advice-and-consent function.  The facts relied upon by OLC are not terribly important, and someone more familiar with Senate procedure may be able to tell us that they mean even less.  But even if some such acts are inconsistent with the Senate being in repeated and continuous session, then that is a problem senators can raise with their leadership.  It is not a valid excuse for someone outside that branch to ignore the House’s power under the Constitution and imagine the Senate sessions to be constitutionally meaningless. Who is the President to judge whether the Senate is “doing enough” for its proceedings to qualify as a recess?

    Finally, the opinion’s treatment of the Pocket Veto cases and many other authorities is embarrassing.  No wonder the administration hesitated to release the opinion.  I leave it to others to discuss the implications of this shoddy reasoning, except to laugh at the line on pages one and 17 that the “Senate may choose to remain continuously in session and available to exercise its advice-and-consent function” and defeat the President’s recess appointment power.  Under OLC’s new, new advice, must 51 senators remain in their seats in the Senate chamber at all times?  Or must they at least sleep in their offices, or within range a 15-minute quorum call?  Apparently, the President has unilateral authority to determine that.

    Todd Gaziano is the Director of the Center for Legal & Judicial Studies at The Heritage Foundation, and previously served in the DOJ Office of  Legal Counsel, where he provided advice on recess appointment issues to previous presidents of both major parties.

    Posted in Legal [slideshow_deploy]

    17 Responses to Whitewash on Illegal Appointments Won't Work

    1. billy says:

      Why don't you provide a link to the source material? The Web let's you do that, you know. http://www.justice.gov/olc/2012/pro-forma-session….

    2. Michael says:

      All this discussion over legality is nonsense. The appointments were made, the people are in office, and all that's happening is people are discussing the finer points of legality. Unless the Senate files a lawsuit and requests an injunction (hard to justify now that they've let the appointments stand for so long), then the appointments are a fait accompli. So Senate Republicans (and Democrats who don't want a future Republican president doing the samething) need to put up (a lawsuit) or shut up. Yes, it's a usurpation of Constitutional powers that belong to the Senate, but unless the Senate defends them, then the Senate states that it is ceding those powers. Once ceded, such powers are difficult to reclaim.

      • Spiritof76 says:

        I agree with you. Not only in this instance but at every other crucial points (health care law, debt ceiling, gun-running, Black Panther immunity) there has been a lot what we should be doing or what the injustices are but never any action to remedy or correct it. The only vehicle of correction for all that transgressions is the election. But the election replaces one set of offenders with a slighltly virulent set of offenders. Our government is broken because we have nullified our Constitution through the Congress, the White House and the Courts- basically defeated the founders' intent of distributed and diluted powers! Please stop telling me that this is the land of the free and home of the brave!

    3. Bobbie says:

      this wouldn't have come to be had America a leader that respects her peoples' constitution!
      the timing for executive order to make appointments was unnecessary and only for controversy, wasting more time and money! what good was what the president did by neglecting the peoples' rule, when it's holding everything up anyway?

    4. Jon Shields says:

      Todd, you are basically calling the head of Bush's OLC from 2005-2009 (and his deputy) incompetent. They both have publicly stated that pro forma sessions are shams that do not prevent recess appointments (see Bradbury and Elwood's 2010 piece in the Washington Post about the subject), and we now find out from today's OLC memo that they put their conclusions in writing to Bush at the time.

      As for the argument that the President can read "no business" as actually meaning "no business," I don't think that is particularly controversial. Sure, the Senate reversed its previous order and passed legislation on December 23rd. But so what? The ability of a Senate to reverse it's previous order does not make the order meaningless; it just means that order was superseded by another order for that day. The Senate conducted no business since, under the order specifically forbidding business, and that duration is sufficient for an intra-session recess appointment according to decades of precedent (including 11th circuit judicial precedent).

      You are basically arguing that in 1800, the Senate could have taken a 9-month recess, with pro forma sessions forbidding any business for 9 months. These would supposedly block recess appointments for all 9 months, solely because the Senators could travel by Horseback back to Washington and reverse their previous order preventing business for 9 months. That sounds highly implausible as a matter of Constitutional interpretation.

    5. Norman says:

      The Senate cannot constitutionally "do business" without a majority present.

      "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide." — http://press-pubs.uchicago.edu/founders/tocs/a1_5

      "The Constitution provides that "a majority of each [house] shall constitute a quorum to do business." In other words, when a majority are present the house [is] in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single member or fraction of the majority present. All that the Constitution requires is the presence of a majority, and when that majority are present, the power of the house arises." — http://supreme.justia.com/us/144/1/case.html#5

    6. Jon Shields says:

      Todd, you are basically calling the head of Bush's OLC from 2005-2009 (and his deputy) incompetent. They both have publicly stated that pro forma sessions are shams that do not prevent recess appointments (see Bradbury and Elwood's 2010 piece in the Washington Post about the subject), and we now find out from today's OLC memo that they put their conclusions in writing to Bush at the time.

    7. Lloyd Scallan says:

      Well, guess what? White wash "IS" working under Obama. Regardless of what we all know is unconstitutional, the facts remain that Obama is doing exactly whatever he wants to do and no one is doing anything to stop him. He sends his lackeys out to the waiting media with the most absurd excuses and explanation that are all lies and distortions, yet they get away with it. For the first time in our lives, under Obama, it's hard to recognize the country we grew-up in. We all must realize the question is now valid for the first time in our history, can America be saved?

    8. Ironfire says:

      First thjis POTUS declares which laws to enforce and which ones not to in a piece of legislation, and now makes illegal appointments to do his dirty work. The House should use its power to impeach. The Harry Reid Senate will not try it of course.

    9. Jeanne Stotler says:

      Did anyone actually expect Holder to find against Obama, he's in BHO's hip pocket, it needs an independent panel and Harry Reid sure isn't going to C/o about "His Boy", they are all in FULL campaighn mode and running scared.

    10. TimAZ says:

      What we have here is a potus that has incrementally usurped both the Senate and the Congress since his first day of occupying the white House. While it is true that he cannot usurp the Congress and the Senate without their willingness to allow it. Both houses have minimally resisted the potus' usurpation. It may be that the occupiers of both houses are just too busy engaging in insider trading, feeding their own desires as the strings are being secured to their heads, arms, and legs, fundamentally transforming them into puppets that no longer represent the people. Creating an illusion for the American citizenry that they still have control of their government. If this fundamental transformation is completed before the 2012 election and potus is re-elected there is nothing he won't be able to accomplish. In a secure election any Disney character could defeat the potus. The problem for the potus is how to steal his re-election and convince the American citizenry that they actually voted for his highness. They say their is a sucker born every minute. I doubt there will have been enough suckers born since 2008 that will be eligible to vote in 2012 election, to give even the smallest amount of credibility to support the belief among the American citizenry that the worst potus in American history has lawfully been re-elected. Had enough yet?

      • Tom says:

        Tim, Please be specific about actions taken by the current president that haven't been taken by his predecessors. Especially his immediate predecessor. Scanning people's email and listening to random telephone calls without a warrant was started by the previous president. Carving out exceptions when signing bills into law was done by a number of previous presidents, but GWB vastly expanded signing statements limiting what he would do to implement or enforce laws. As far as the subject of this article goes, presidents of various parties have made recess appointments for over 100 years. This article is basically a lie supporting a lie. Congress isn't in session just because they say they're in session. Congress is in session when they are in the Senate and House chambers working for at least part of the day. This ridiculous Senate farce is originally started by Democrats and the Republicans are just copying Harry Reid, but in both cases it was wrong and invalid.

        Please, Tim, be SPECIFIC. And take off your tin foil hat first.

        • Bobbie says:

          Please Tom, don't flatter yourself. That of which was done by Obama's predecessors is all of which Obama said would "change." Only for the worse has there been any "change" with all kinds of childish, irresponsible excuses for you to easily accept the current happenings…

          The President has taken alot of money from tax payers to avoid what the President describes as crisis! Only causing far worse crisis leading to disaster. Are you defending the President capitalizing on mistakes of the past to bring America down? Are you anti freedom?

    11. Dan says:

      "But even if some such acts are inconsistent with the Senate being in repeated and continuous session, then that is a problem senators can raise with their leadership. It is not a valid excuse for someone outside that branch to ignore the House’s power under the Constitution and imagine the Senate sessions to be constitutionally meaningless. Who is the President to judge whether the Senate is “doing enough” for its proceedings to qualify as a recess?"

      Can the Senate adopt a resolution, just before taking a six-week vacation, saying they are NEVER in recess, and that no matter what we might see with our lying eyes, they are in perpetual session and ready to do business?

      Presumably not, because doing so would entirely negate the recess appointment power as well as be facially preposterous. Your earlier arguments maintain that the Senate IS in recess by some discernible objective standard. Let's debate that. Suggesting that Congress has a unilateral authority, beyond all challenge, to negate the recess power, certainly proves too much.

    12. RennyG says:

      Great analysis. So when are athorities going to court? When does it start? When will something be done with this guy? When are we going to stop letting these things happen? When are the people going to see some of our political leaders stand up for us? When are we going to stop this guy from digging the hole deeper? When are we going to stand up for our future generation? I hear and read so much of this but I hear of nothing that is being done to stand up to this guy!!

    13. Bill says:

      Some of the people commenting here should base their thoughts on what is actually written in the Constitution and not what some politician has said or written. The remedy for what Obama has done is impeachment. Please read history concerning why President Andrew Johnson was impeached. You will note that he tried to establish policies that were contradictory to what Congress had passed, made appointments and fired people without Senatorial confirmation, and appealed to the people while criticizing the Republican Congress. The result was his impeachment by the House although he was not convicted by the Senate. One can expect the same result with Obama, although the House doesn't seem to have the courage to enforce their status as a coequal branch. It is not up to the Judiciary to decide this issue, although they could rule that any rules or regulations passed by the new consumer agency or the NLRB would not be legal and so not have the force of law.

    14. E Brown says:

      The partisan tone of this article indicates that the organazitionauthor has an interest in this matter beyond the legality or constitutional basis for the President's actions. The evidence for such a conclusion is the lack of any discussion of the context in which the appointments were made. Consider the fact that the Republican controlled House in concert with Republican Senators have attempted to interfer with the President's Constitutional powers, to make the appointment of Persons of his choosing, by gaming the Constitutional process. The central theme of this 'conflict' is the Republicans attempt to interfer with the President's Constitutional power to make the appointments.

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