Justice memo argues Obama recess appointments were legal
By Alexander Bolton - 01/12/12
thehill.com
The Department of Justice offered a defense Thursday for President Obama’s controversial decision to make several recess appointments while Congress was holding pro forma sessions.
In a memo, Justice argued the pro forma sessions held every third day in the Senate do not constitute a functioning body that can render advice and consent on the president’s nominees. It said the president acted consistently under the law by making the appointments.
“Although the Senate will have held pro forma sessions regularly from January 3 to January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the president from determining that the Senate remains unavailable throughout to ‘receive communications from the president or participate as a body in making appointments,’” Virginia Seitz, assistant attorney general for the Office of Legal Counsel, wrote in the memo dated Jan. 6.
The Office of Legal Counsel concluded the president has authority to make recess appointments during a recess and that Congress can only prevent the president from making such appointments “by remaining continuously in session and available to receive and act on nominations,” not by holding pro forma sessions.
Republicans, who had set up the pro forma sessions to prevent Obama from making the appointments, are expected to challenge them in court.
Obama used his recess-appointment powers to place Richard Cordray as director of the Consumer Financial Protection Bureau. He also named three people to the National Labor Relations Board.
Seitz offered several points in defense of Obama’s actions.
The memo noted that pro forma sessions typically last only a few seconds and require the presence of only one senator.
It cited statements from Republican and Democratic senators, including James Inhofe (R-Okla.), John Thune (R-S.D.) and Patrick Leahy (D-Vt.), indicating the lawmakers themselves did not consider the cursory sessions as true breaks in the Senate recess.
The memo noted that the Senate’s website does not recognize pro forma sessions as breaking up extended recesses into mini-recesses, as Republicans now argue.
It also notes that messages from the president received during recess are not laid before the Senate or entered into the Congressional Record until the full Senate returns to work, even if pro forma sessions have been convened in the interim.
The federal judiciary has shown reluctance to limit the president’s power to make recess appointments.
In 2004, the 11th U.S. Circuit Court of Appeals validated the presidential power and refused to set a minimum length of recess for such appointments to be valid.
“The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today,” the court ruled in Evans v. Stephens.
On Thursday, Tom Donohue, president and CEO of the U.S. Chamber of Commerce, said the business trade association has not made a decision on challenging the recess appointments in court, a sign the administration might have a strong case.
“We are not going to sue today because one has to see what [Cordray] does and what the three new guys at the National Labor Relations Board do,” Donohue said.
“On this one, we’re working our way through it.”
This also just in... the fox says that there is nothing to worry about in the hen house.
1 posted on Thursday, January 12, 2012 1:11:58 PM by Sopater
To: Sopater
I thought that the house decides when the senate can adjourn (per the constitution).
5 posted on Thursday, January 12, 2012 1:18:13 PM by Abby4116
To: Sopater
The Executive Branch can now write the rules of the Senate. Separation of Powers anyone?
6 posted on Thursday, January 12, 2012 1:18:49 PM by massgopguy
To: Sopater
“Justice memo argues Obama recess appointments were legal”
Isn’t that the same as saying: “Obama argues Obama recess appointments were legal”
7 posted on Thursday, January 12, 2012 1:22:42 PM by aquila48
To: Sopater
From the same Holder-DOJ that "argues" that below is NOT voter intimidation:
8 posted on Thursday, January 12, 2012 1:27:08 PM by drpix
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To: Sopater
As in the Black Panther Voter Intimidation case, the memo was written by the same Holder-DOJ racist liars whose analysis goes no farther than: if your black you're innocent!
But facts show that Harry REID did the same pro forma sessions every three days to prevent BUSH from making recess appointments during three different Senate breaks - and BUSH made no appointments during those breaks.
Here's the conclusive proof from the public policy research arm of the United States Congress ("Congress's think tank").
CONGRESSIONAL RESEARCH SERVICE REPORT TO CONGRESS
[ Updated March 12, 2008, Order Code RS21308, LINK ]
"How Long Must the Senate Be in Recess Before a President May Make a Recess Appointment?"
"The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over the last century, as shorter recesses have become more commonplace, the Department of Justice has offered differing views on this issue. Most recently, in 1993, a Justice Department brief implied that the President may make a recess appointment during a recess of more than three days. On at least three occasions, the Senate has used procedural tools to prevent the occurrence of a recess of more than three days for the stated purpose of preventing such appointments: the 2007 Thanksgiving holiday period, the period between the first and second sessions of the 110th Congress, and the 2008 Presidents Day holiday period. In each of these cases, the Senate {under Harry Reid} met in pro forma sessions (during which no business was to be conducted) every three or four days over the course of what otherwise would have been a longer Senate recess. The President {Bush} made no recess appointments during these periods."
9 posted on Thursday, January 12, 2012 1:29:36 PM by drpix
To: Sopater
Let's see, either chamber of Congress can have only two states: 1) in session; and 2) in recess. If, as the Constitution states, neither chamber can be in recess without the consent of the other and the House hasn't given its consent, THEN ITS IN SESSION.
Don't need 23 pages for that!
10 posted on Thursday, January 12, 2012 1:32:35 PM by Renkluaf
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To: Sopater
Welllllll, if the Dept. of Just Us says it's all okay, then that settles it.
11 posted on Thursday, January 12, 2012 1:42:16 PM by Jane Long (Soli Deo Gloria!)
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