Monday, January 9, 2012

More Recess Appointment Notes

While I mostly take the side of those who believe that the recess appointments were legitimate because the Senate was in fact in recess, I agree with the letter sent by Senate Republicans to the White House asking for more detail about the logic in making the appointments. I haven't seen any WH response yet, but I do think that it's appropriate to release any Justice Department or White House authored legal opinion, assuming there is one (and if there isn't, we should get to know that too).

I understand that for political reasons the administration wants to focus on the substance of consumer financial regulation. But procedure matters, and we're going to need something more than just Dan Pfeiffer saying that "Legal experts agree."

Meanwhile, a couple of things you might want to read: Nolan McCarty over at the Monkey Cage knows about the older history of recess appointments, and a second post by Matt Glassman is interesting, too.


  1. Two points:

    1. OLC opinions will often present balanced views of the matter, and therefore might contain an opinion that is much weaker in its assessment of the constitutionality. That might not look great politically.

    2. The WH could have overruled Justice. If that's the case, the OLC opinion is better off hidden, since it could contradict the WH action and/or WH opinion, and would probably be subject to FOIA if it was admitted it existed.

    I don't think either of these are likely, but they are certainly possible.


  2. If I were reacting honestly, rather than as an actual President subject to blowback..

    I'd send Mitch McConnell his request back, stuffed in the mouth of a dead fish which was wrapped up in a bulletproof vest.

    And yes, it means one-sided attempts at bipartisanship sleep with the fishes.

    (Possibly an invitation for administration officials to sit down with Senate officials to work out a reasonable policy on considering appointments would be a fairer response, but I wouldn't expect it to go anywhere this year.)


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