On January 4, 2012 President Obama announced four unilateral appointments, citing the Recess Clause of the Constitution. These involved the appointment of the first director of the new Consumer Financial Protection Bureau, former Ohio Attorney General Richard Cordray, and appointees to fill three vacancies on the National Labor Relations Board. Predictably, the Obama Justice Department ratified his abuse of his constitutional recess appointment power. In a legal memo dated January 6, 2012, Virginia A. Seitz, the assistant attorney general for the Office of Legal Counsel, concluded that the Senate’s “pro forma” sessions counted as recesses even though the Senate did not regard them as recesses. Why? Because the president says so.

Seitz claims that if during any period the Senate cannot actually conduct business on the spot and is “unavailable to perform its advise-and-consent function,” the president is free to deem the Senate in recess and make his own “recess” appointments. The absurdity of such logic means that any time between Friday and Monday when the Senate often does not conduct official business, the president can make all of the appointments he wants to.

Seitz admits that the practice of holding “pro forma” Senate sessions that were not deemed recesses by the Senate began when the Democrats controlled the Senate and a Republican occupied the White House:

Beginning in late 2007, and continuing into the 112th Congress, the Senate has frequently conducted pro forma sessions during recesses occurring within sessions of Congress… The Senate Majority Leader has stated that such pro forma sessions break a long recess into shorter adjournments, each of which might ordinarily be deemed too short to be considered a “recess” within the meaning of the Recess Appointments Clause, thus preventing the President from exercising his constitutional power to make recess appointments.

Seitz even quotes a 2007 statement by Senate Majority Leader Harry Reid (D-Nev.): “[T]he Senate will be coming in for pro forma sessions … to prevent recess appointments.”

Reid is still the Senate Majority Leader under whom the very same pro forma procedure is being followed this time around. The only real difference – there is now a Democrat occupying the White House.

Seitz tries to draw another distinction between then and now. In 2007-2008, she says, the Senate really wanted to block recess appointments by using the pro forma sessions. This time, Seitz argues, the House of Representatives made the Senate do it by refusing to pass any resolution to allow the Senate to recess or adjourn for more than three days:

While this practice was initiated by Senate action, more recently the Senate’s use of such sessions appears to have been forced by actions of the House of Representatives.

Under the Constitution, as Seitz acknowledges, “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” (U.S. Const. Art. I, § 5, cl. 4 ). But Seitz tries to turn this provision around to her favor by arguing that, since the House prevented the Senate from adjourning for more than three days even if it wanted to, the president can help the Senate out and decide for himself that the Senate was really on an extended recess.

Seitz then proceeds to the heart of her legal argument in support of Obama’s “recess” appointments. She states that under a test first articulated by Attorney General Daugherty in 1921, and subsequently reaffirmed and applied by several opinions of the Justice Department, the “constitutional test for whether a recess appointment is permissible is whether the adjournment of the Senate is of such duration that the Senate could ‘not receive communications from the President or participate as a body in making appointments.’”

Seitz proceeds to take quotes out of context from the Daugherty opinion, which she uses to support her argument, such as the following:

[T]he president has broad discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate.

Seitz neglects to mention that Attorney General Daugherty was dealing with the issue of whether the president can make appointments during a recess, no matter how long, if the recess occurred within a single session. Daugherty concluded that a 28-day intra-session break clearly did constitute a recess for purposes of the Recess Appointments Clause. However, he wrote that a break “for only 2 instead of 28 days” did not constitute such a recess. “Nor do I think an adjournment of 5 or even 10 days can be said to constitute the recess intended by the Constitution.”

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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