President Obama Appoints While Congress is on Recess

default article imageThe Justice Department is defending the legality of President Obama’s recent recess appointments, releasing a 23page legal opinion. Critics say it is “unconvincing” and whose timing doesn’t coincide with the President’s decision.

The memo, justifying appointments made last week while Congress was technically not recessed, concludes what the White House claimed at the time that Congress isn’t able to do business during “pro forma” sessions so it counts as a break.

“The convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intra-session recess otherwise long enough to qualify as a ‘Recess of the Senate’ under the Recess Appointments Clause,” reads the January 6th  memo written by Assistant Attorney General Virginia Seitz.

“In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise and consent function and to exercise his power to make recess appointments,’ it continues.

The memo, dated two days after President Obama made his controversial appointment of Richard Cordray to the Consumer Financial Protection Bureau and three others to the National Labor Relations Board, summarizes advice given to the White House before the January 4th appointments, an administration official said.

While Republicans contemplate their next step, recess appointee Richard Cordray is running the new Consumer Financial Protection Bureau and the National Labor Relations Board As of this report, the three temporary members of the Bureau, are all Democrats.

Obama left more than 70 other nominees in limbo, well aware that Republicans could use Senate rules to block some or all of them.

The White House justified the appointments on grounds that Republicans were holding up the nominations to paralyze the two agencies. The consumer protection agency was established under the 2010 Wall Street reform law, which requires the bureau to have a director in order to begin policing financial products such as mortgages, checking accounts, credit cards and payday loans.

The Supreme Court has ruled that the five member NLRB must have a three member quorum to issue regulations or decide major cases in union employer disputes.

White House spokesman Jay Carney added that the Justice Department’s legal opinion “was rendered before the decision was made by the President.”

Carney said. “The opinion was rendered verbally prior to the date of the opinion itself. The opinion was based on advice provided by OLC and it is very standard for, especially a long and as you see, as lengthy opinion as was put out, for those things to be delivered over a period of time, and the time frame for this is very similar to my understanding the previous occasion.”

But Republicans and others are doubtful about both the timing and the content.

“The Justice Department opinion is unconvincing,” said Senate Judiciary Committee ranking Republican Charles Grassley of Iowa.

“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,” Grassley said in a statement.

“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,” he continued.

The American Center for Law and Justice, a conservative group focused on constitutional law, also called Thursday’s memo a “smokescreen.”

“This memo changes nothing: President Obama acted in a unconstitutional manner in making these appointments  ignoring the rule of law and nearly a century of precedent,” said ACLJ Chief Counsel Jay Sekulow.

Dr. Enoch Nappen, Associate Professor of Political Science, Monmouth University’s prelaw advisor and Department of Political Science and Sociology career advisor, says that this may very well go to the Supreme Court. He also brought up the fact that John Bolton, the former United States Ambassador to the U.N. was appointed by President George W. Bush during a Congressional recess and had to leave when Congress reconvened.

Dr. Nappen also stated that Republicans are fearful of an ‘Imperial Presidency’ of the likes of Republican President Richard Nixon, during the late 1960s’ and early 1970s’.

Republicans have to consider whether their actions, especially any decision to block all nominees, might play into Obama’s hands.

Obama has adopted an election year theme of “we can’t wait” for Republicans to act on nominations and major proposals like his latest jobs plan. Republicans have to consider how their argument that the President is violating Constitutional checks and balances plays against Obama’s stump speeches characterizing them as obstructionists.

Senate historian Donald Ritchie said the minority party has retaliated in the past for recess appointments by holding up specific nominees. “I’m not aware of any situations where no nominations were accepted,” he said. The normal practice is for the two party leaders to negotiate which nominations get votes.

According to the terms of a recess appointment at the time Obama made it, Cordray, who was successfully filibustered by Republicans last year, will remain in the job until January 3, 2014. He is not personally objectionable to many Republicans, however, they want to change aspects of the agency he was named to lead and which was approved on a party line vote in the 2010 banking reform bill. 

But Republicans angry at Obama’s move and their allies willing to file suit may not have a legal case. Nowhere in the Constitution is a recess expressly defined even though the document gives the chief executive the “power to fill up vacancies that may happen during the recess of the Senate.”

The real question is whether what Obama did was constitutional. This will be decided by the Supreme Court in the coming weeks.