Thursday, January 12, 2012
The Justice Department Office of Legal Counsel today released its opinion (dated January 6, 2012) concluding that President Obama had authority under the Recess Appointments Clause to appoint Richard Cordray as head of the Consumer Financial Protection Bureau and members of the National Labor Relations Board during less than three-day breaks between pro forma sessions of the Senate. We most recently posted on the appointments here.
Recall that opponents of the appointments argued that the three-day breaks between pro forma sessions were not long enough to constitute a "recess" of the Senate, and that the appointments therefore required Senate advice and consent and violated the Recess Appointments Clause.
The OLC took a functional approach to the definition of "recess," asking whether the Senate's pro forma sessions would have allowed the Senate to fulfill its advice-and-consent role for ordinary appointments. The Office said no, and therefore the President may use his recess appointment power.
The OLC took it in a two-step. First, it asked whether the President had authority to make a recess appointment during the Senate's recess here--a 20-day intrasession recess. Answer: Yes, based on the OLC's prior advice, historical practice, and the limited judicial authority on the question. This is relatively uncontroversial.
Second, it asked "whether the President is disabled from making an appointment when the recess is punctuated by periodic pro forma sessions at which Congress has declared in advance that no business is to be conducted." Answer: Also yes, although it acknowledged that this was somewhat more controversial--and creates "some litigation risk for such appointments."
This functional approach allowed the OLC to dodge the harder question, whether any three-day recess is necessarily a "recess" under the Recess Appointments Clause. The memo explains:
Because we conclude that pro forma sessions do not have this effect [that the Senate is unavailable to fulfill its advice-and-consent role], we need not decide whether the President could make a recess appointment during a three-day intrasession recess. This Office has not formally concluded that there is a lower limit to the duration of a recess within which the President can make a recess appointment.
Op. at 9, n. 13. In other words, what's important isn't the three-day recess between pro forma sessions, but the 20-day recess (which is a "recess" under the Recess Appointments Clause) punctuated by pro forma sessions (which do not allow the Senate to fulfill its constitutional role of advice and consent). (Under this reasoning, the pro forma sessions could be spread across any number of days--1, 2, or 15. What matters is whether the Senate can conduct business, or, more precisely according to the OLC, whether the President determines that the Senate can conduct business--see below.)
The Office cited its own precedent, historical practice, and the Senate Judiciary Committee's own position in support of this functional approach.
Under the approach, the Office concluded that "the President may determine that pro forma sessions at which no business is to be conducted do not interrupt a Senate recess for purposes of the Recess Appointments Clause."
The OLC rejected arguements that the Senate employed pro forma sessions, with full legal effect as other sessions, in other contexts (because those contexts are different); that the Senate itself, under its rules, should be able to determine when it's open for business (because that determination can't trump the Constitution); that based on experience the Senate is, in fact, open for business during pro forma sessions (because the Senate said here "no business conducted," and because the President gets to determine this); that precedent on the pocket veto should constraint the President's recess appointment authority (because the purposes are different); and that the Justice Department (through then-SG Kagan) took a different position on NLRB appointments in 2007 (because SG Kagan's letter, like this OLC opinion, did not answer the question whether an intrasession recess of three days or less constitutes a "recess" under the Recess Appointments Clause).