On January 10, I published an op-ed in the Wall Street Journal stating that I could see no plausible legal argument to support President Obama’s recent recess appointments to the Consumer Financial Protection Board and the National Labor Relations Board. I noted that the Administration had not relied on any opinion from the Office of Legal Counsel, and inferred that it must not have obtained such an opinion. http://www.advancingafreesociety.org/2012/01/10/democrats-and-executive-outreach/
Today, January 12, 2012, the Administration released an Office of Legal Counsel opinion, dated January 6, opining that the recess appointments were constitutional. The Opinion concludes that the pro forma sessions of the Senate conducted every three days during the December and January holiday are not sufficiently substantive to interrupt a Senate recess, meaning that the Senate was in recess from December 17 well into January.
I compliment the Administration for releasing the opinion, while still wondering what was their reason was for delay. It is reassuring that in this instance the Administration followed proper legal channels before taking a controversial constitutional position at odds with recent precedent (precedent established in 2007 by Senate Democrats, including then-Senator Obama).
I have not had time to give careful study to the 23-page OLC Opinion, but my preliminary reaction is not to be convinced. The Opinion makes arguments that are not frivolous, but it seems to me the counterarguments are more powerful.
In particular, the Opinion places enormous weight on the fact that the Senate’s resolution providing for pro forma sessions declared that there would be “no business conducted.” There are two problems with this, as a legal matter. First, as the Opinion concedes, the important question is whether at these sessions the Senate is “capable” of exercising its constitutional functions – not whether, on any particular occasion, it has chosen not to do so. Second, in actual fact the Senate has conducted major business during these sessions, including passing the payroll tax holiday extension during a pro forma session on December 23. The Opinion weakly responds that, notwithstanding this evidence of actual practice, the President “may properly rely on the public pronouncements of the Senate that it will not conduct business.” It is hard to see why the Senate’s stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so. The President is well aware the Senate is doing business on these days, because he has signed two pieces of legislation passed during them.
More fundamentally, the Opinion creates an implausible distinction between the legal efficacy of pro forma sessions for various constitutional purposes. According to the Opinion, a pro forma session is not sufficient to interrupt a recess for purposes of the Recess Appointments Clause, but it is sufficient to satisfy the constitutional command that neither branch adjourn for more than three days without the consent of the other (Art. I, §cl. 4) and that Congress convene on January 3 unless a law has provided for a different day. There is longstanding precedent that pro forma sessions are sufficient to satisfy these constitutional requirements. Why a pro forma session would count for some purposes and not others is a mystery. It is difficult to escape the conclusion that OLC is simply fashioning rules to reach to the outcomes it wishes.
Finally, it bears mention that a great deal of the authority OLC cites in support of the President’s authority to make recess appointments during intrasession recesses in the first place – wholly apart from the pro forma issue – consists of prior executive branch pronouncements that are at odds with both the language and the history of the constitutional text. It would not be surprising if the judiciary were to reject these self-serving executive interpretations in favor of more straightforward ones. In particular, courts might rule that the Recess Appointments Clause applies only when a vacancy “happens” during a recess, as the text of Att. II, § 2, cl. 3, says, and that “the recess” of the Senate occurs only between sessions, and not (as here) in the midst of a session. The OLC Opinion acknowledges as much, when it says that the appointments face “some litigation risk.” But the Obama Administration cannot be faulted for following longstanding executive precedent, which has been used by past Presidents both Republican and Democrat. It is only the novel arguments that I criticize here. It seems to me that the Administration is under special obligation to provide a bullet-proof legal argument when it declares invalid a strategy devised by Majority Leader Harry Reid in 2007, supported by then-Senator Barack Obama, and successfully used by them to stymie President George W. Bush’s recess appointment power. The law cannot change just because the shoe is on the other foot.
The fact that the Administration obtained an OLC opinion in advance of the appointments (the Opinion is dated two days after the appointments, but presumably it reflects the advice given to the President in advance) shows that they were not made, as initially appeared, without benefit of independent legal analysis. And the public should welcome the release of the opinion itself, so that we can know the offical legal basis for the President’s acts, rather than having to guess. On the merits, though, at least on first study, the Opinion does not have the better of the argument.