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Whitewash on Illegal Appointments Won't Work

Posted By Todd Gaziano On January 12, 2012 @ 1:25 pm In Legal | Comments Disabled

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.


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