On January 4, 2012 President Obama announced four unilateral appointments, citing the Recess Clause of the Constitution. These involved the appointment of the first director of the new Consumer Financial Protection Bureau, former Ohio Attorney General Richard Cordray, and appointees to fill three vacancies on the National Labor Relations Board. Predictably, the Obama Justice Department ratified his abuse of his constitutional recess appointment power. In a legal memo dated January 6, 2012, Virginia A. Seitz, the assistant attorney general for the Office of Legal Counsel, concluded that the Senate’s “pro forma” sessions counted as recesses even though the Senate did not regard them as recesses. Why? Because the president says so.
Seitz claims that if during any period the Senate cannot actually conduct business on the spot and is “unavailable to perform its advise-and-consent function,” the president is free to deem the Senate in recess and make his own “recess” appointments. The absurdity of such logic means that any time between Friday and Monday when the Senate often does not conduct official business, the president can make all of the appointments he wants to.
Seitz admits that the practice of holding “pro forma” Senate sessions that were not deemed recesses by the Senate began when the Democrats controlled the Senate and a Republican occupied the White House:
Beginning in late 2007, and continuing into the 112th Congress, the Senate has frequently conducted pro forma sessions during recesses occurring within sessions of Congress… The Senate Majority Leader has stated that such pro forma sessions break a long recess into shorter adjournments, each of which might ordinarily be deemed too short to be considered a “recess” within the meaning of the Recess Appointments Clause, thus preventing the President from exercising his constitutional power to make recess appointments.
Seitz even quotes a 2007 statement by Senate Majority Leader Harry Reid (D-Nev.): “[T]he Senate will be coming in for pro forma sessions . . . to prevent recess appointments.”
Reid is still the Senate Majority Leader under whom the very same pro forma procedure is being followed this time around. The only real difference – there is now a Democrat occupying the White House.
Seitz tries to draw another distinction between then and now. In 2007-2008, she says, the Senate really wanted to block recess appointments by using the pro forma sessions. This time, Seitz argues, the House of Representatives made the Senate do it by refusing to pass any resolution to allow the Senate to recess or adjourn for more than three days:
While this practice was initiated by Senate action, more recently the Senate’s use of such sessions appears to have been forced by actions of the House of Representatives.
Under the Constitution, as Seitz acknowledges, “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” (U.S. Const. Art. I, § 5, cl. 4 ). But Seitz tries to turn this provision around to her favor by arguing that, since the House prevented the Senate from adjourning for more than three days even if it wanted to, the president can help the Senate out and decide for himself that the Senate was really on an extended recess.
Seitz then proceeds to the heart of her legal argument in support of Obama’s “recess” appointments. She states that under a test first articulated by Attorney General Daugherty in 1921, and subsequently reaffirmed and applied by several opinions of the Justice Department, the “constitutional test for whether a recess appointment is permissible is whether the adjournment of the Senate is of such duration that the Senate could ‘not receive communications from the President or participate as a body in making appointments.’”
Seitz proceeds to take quotes out of context from the Daugherty opinion, which she uses to support her argument, such as the following:
[T]he president has broad discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate.
Seitz neglects to mention that Attorney General Daugherty was dealing with the issue of whether the president can make appointments during a recess, no matter how long, if the recess occurred within a single session. Daugherty concluded that a 28-day intra-session break clearly did constitute a recess for purposes of the Recess Appointments Clause. However, he wrote that a break “for only 2 instead of 28 days” did not constitute such a recess. “Nor do I think an adjournment of 5 or even 10 days can be said to constitute the recess intended by the Constitution.”
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