Seitz concedes in a footnote that her own Justice Department has more recently used a minimum of three days of adjournment to determine whether there was in fact a recess:
[T]his Office and the Department of Justice in litigation have recognized the argument that the three days set by the Constitution as the time during which one House may adjourn without the consent of the other, U.S. Const. art. I, § 5, cl. 4, is also the length of time amounting to a ‘Recess’ under the Recess Appointments Clause. (fn 13)
The only federal court of appeals decision squarely on point was an Eleventh Circuit opinion upholding the recess appointment of a judge made during an eleven-day intra-session recess.
Lacking any precedent to support the president’s authority to make recess appointments during adjournments of less than three full days, assistant attorney general Seitz simply asserts that, for all intents and purposes, the current Senate was actually in the midst of an uninterrupted 20 day recess. Her argument is that the Senate was not conducting any official business during the shorter pro forma sessions and that the Senate was thus “unable to provide advice and consent on appointments.”
Such arguments are too weak to overcome the legislative branch’s sole constitutional authority to “determine the Rules of its Proceedings” (U.S. Const. Art. I, § 5, cl. 2). There is no authorization in the Constitution for the president to impose his own understanding of whether the pro forma sessions have the legal effect of interrupting a recess of the Senate for any purpose if the Senate has determined otherwise. There is only one express provision in the Constitution that gives the president the power to interfere with the legislative adjournment decision. Under Article II, § 3, the president “may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.” In other words, Obama had a constitutional remedy to resolve any differences between the House and the Senate on the length of adjournment and could have even set the length of adjournment for them. He chose not to do so. He did not use the one express constitutional recourse available to him to prevent an inter-house disagreement over legislative adjournment schedules from interfering with his executive recess appointment powers.
Even if the standard of whether the Senate was unable to provide advice and consent on appointments is used to define what constitutes a recess during which the president is entitled to make a recess appointment, this argument still fails in this case.
The Senate was able to provide advice and consent, if it chose to, during its pro-forma sessions by the same procedure used last month to pass the two month extension of the payroll tax cut – unanimous consent. Seitz even admits in another of her footnotes (fn 17) that” the Senate has occasionally enacted legislation by unanimous consent during pro forma sessions.” Later, in the text of her legal memo, she acknowledges:
[I]t could be argued that the experience of recent pro forma sessions suggests that the Senate is in fact available to fulfill its constitutional duties during recesses punctuated by periodic pro forma sessions. Twice in 2011, the Senate passed legislation during pro forma sessions by unanimous consent, evidenced by the lack of objection from any member who might have been present at the time. During one of these sessions, the Senate also agreed to a conference with the House, and messages received from the House earlier in the intrasession recess were put into the Congressional Record. Conceivably, the Senate might provide advice and consent on pending nominations during a pro forma session in the same manner (emphasis added.)
This one paragraph in Seitz’s memo, citing specific examples of legislative actions conducted during pro forma sessions and conceding that the Senate had the means to provide advice and consent on pending nominations in the same manner, undercuts the entire premise of her argument that the Senate was unable to provide “advice and consent” to the president during pro forma sessions.
How does Seitz deal with this problem? She simply asserts that it does not matter:
We do not believe, however, that these examples prevent the President from determining that the Senate remains unavailable to provide advice and consent during the present intrasession recess… In our judgment, the President may properly rely on the public pronouncements of the Senate that it will not conduct business (including action on nominations), in determining whether the Senate remains in recess, regardless of whether the Senate has disregarded its own orders on prior occasions.
In other words, it does not matter to the Obama Justice Department that the Senate has demonstrated within the last month its ability to pass a major piece of legislation such as the payroll tax cut extension, pushed hard by Obama himself, during a pro forma session. Seitz, Obama’s assistant attorney general for the Office of Legal Counsel, asserts that the president nevertheless still has the right to deem the Senate in recess for the purpose of making his unilateral appointments without even having formally requested Senate “advice and consent” during a pro-forma session by the same means used to pass the tax cut extension.
The entire Obama Department of Justice legal justification for Obama’s so-called “recess” appointments is nothing more than an after-the-fact rationalization of an unconstitutional act.
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