To: ManyMoose who wrote (84787 ) 1/12/2012 4:12:10 PM From: joseffy 1 Recommendation Respond to Kagan in 2010: Pro-forma Senate sessions enough to block recess appointments hotair.com Congressional Research Service notes that no President in the 20 years prior to Barack Obama’s actions in the past two weeks has attempted a recess appointment unless Congress has been out of session more than nine days. Obama’s own Department of Justice says aren’t good enough to stop the President from the exercise of his constitutional power:President Barack Obama’s decision last week to snub Congress and make a series of recess appointments while the Senate claimed it was technically in session had the legal blessing of the Justice Department, according to a formal legal opinion released Thursday. Ironically, as Josh Gerstein points out at Politico, Seitz has her position thanks to the obstruction of Senate Republicans to Obama’s first choice for the OLC position, Dawn Johnsen. However, the date of the opinion is also interesting. Seitz wrote this on January 6th, two days after Obama made his recess appointments This looks very much like someone trying to fluff out an opinion to make the boss look good, rather than independent legal analysis — perhaps yet another example of the politicization of the DoJ we have seen under Obama and Attorney General Eric Holder. Another awkward fact acknowledged in Seitz’s opinion is that less than two years ago the Justice Department sent the Supreme Court a letter-style brief noting that “the Senate may act to foreclose [recess appointments] by declining to recess for more than two or three days at a time over a lengthy period.” Seitz insisted that the letter, from then-Solicitor General Elena Kagan, didn’t directly address the situation Obama faced earlier this month. There’s yet another awkward fact, which is that the House apparently did not agree to a full recess, which would be required for the Senate to go into a formal recess. That constitutional requirement might make the legal defense of these appointments more difficult, assuming that any court would be anxious to get in the middle of this food fight between the executive and legislative branches. Other Presidents have used (or abused, depending on one’s point of view at the moment) the ambiguous nature of the term “recess” to their advantage, but precedent may not equal a victory if this goes to court — and if the Supreme Court takes this up, Kagan will have no choice but to recuse herself from the case. the contradictory stances won’t help the President’s case.
