Thursday, January 12, 2012

The OLC Recess Appointment Opinion

The Justice Department's Office of Legal Counsel, as I've noted all day, released its opinion on recess appointments and pro forma Senate sessions today. The bottom line: in their opinion, the pro forma gimmick is illegitimate, and the president is free to choose to ignore those sessions and treat periods such as the current one as proper, Constitution-qualifying recesses for the purpose of recess appointments.

First, the substantive implications. OLC basically leaves alone the old three-day minimum; the point here is that situations such as the present one are in fact long (enough) recesses, notwithstanding the pro forma sessions. This opinion does not, as I see it, put the presidency on the path to making recess appointments when the Senate breaks for lunch, or overnight or on weekends. Second, it opposes any use of pro forma sessions to create phony recesses -- while OLC does note that during the current Congress the gimmick has been forced by the House, there's nothing here to hold back a future president faced with the situation that George W. Bush faced (and accepted) in 2007-2008. In my view it would have been sensible to distinguish between a Senate-supported pro forma gimmick and one forced by the House against the preferences of the Senate majority, but there's no support for that view here.

Second, the strength of the opinion. Basically, OLC says that this is a new question (the tactic never really showed up before 2007), that there's very little Constitutional guidance, and that consequently the call could basically go either way, although they argue that the pro-appointment side has the better of it. For a good analysis of this part of it, see Bush-era recess appointment supporter John Ellwood.

Third, while it's true as Matt Glassman points out that an OLC opinion has no force of law and is to be expected to take the point of view of the executive branch, I'd caution against interpreting this purely as a case of the president overriding Congress's claim that they are in recess. Congress per se has made no such claim, and OLC relies not just on previous Justice Department opinions but in several places on what Congress itself has said over the years.

Fourth, ultimately, however, the decision rests (as Adam Serwer says) on the claim that the practical reality of a Congress out of town and in fact not dealing with appointments trumps the claim that Congress is technically still in session during such periods.

My general feeling about this remains the same. I strongly support a meaningful advise-and-consent role for the Senate in the nominations process; in fact, I mostly oppose some of the "streamlining" reform efforts to move large numbers of executive branch positions out of the category of nominations that need confirmation. However, I don't think that recess appointments are much of a threat to the Senate's role. As a presidential weapon, they lack punch. On judicial nominations, recess appointments are massive surrenders for the president since they involve trading a lifetime slot for a short-term one. And even in the executive branch, recess appointments have real disadvantages over regular confirmed nominations.  Recess appointments at best are a weapon for presidents to use in negotiating with the Senate, not a potential replacement for it.

And as for the specific question...again, as a non-lawyer, my sense is that it's a close call if the majority of the Senate insists that they are not in recess while the president believes that they are for all practical purposes, but that it's a much less close case when the majority of the Senate agrees with the president and only the House (and the Senate minority) disagree.

Of course, there is something that the president and the majority of the Senate could do other than recess appointments: they could reform the Senate to allow for majority confirmation of executive branch nominees.


  1. As someone who values the advise-and-consent role of the Senate, I'd be curious what you think of these proposed steps to addressing the narrower issue of judicial nominees:
    I don't know what the odds would be for such a bargain and rules change actually happening, but I was trying to develop a proposal that would preserve meaningful advise-and-consent over the federal judiciary while curtailing the partisan gridlock.

  2. Response to Jason's link: A nice little proposal -- if the partisan wars had never happened and never gotten to today's place.

    From a progressive viewpoint, giving up one-third of judicial nominees to Republican direction essentially validates Republican strategy. Since Reagan we've had 3 decades of Republicans doing everything they can to push the courts to the right, stuffing them with their Federalist Society nominees when they could, finding plausible Supreme Court candidates who have since revealed themselves to be politically biased in a way that violates all previous norms of judicial impartiality, and stalling and vetoing Democratic nominees in the 11 years since Reagan that Democrats have held the President's constitutional nomination power.

    So Obama outrages his base by giving up the court-stuffing game to the GOP, yet your proposal at that point is left hoping that the GOP will agree to play nice with actual Democratic nominees in a 90-day window (and their third would go through with the same speed). It is reminiscent of the sort of Congressional inter-partisan un-written rules we're familiar with, in Congress's modern history up to about 1994 and the Gingrich Revolution.

    But the Republicans could have set up such a new set of un-written rules in a quiet backroom sit-down with the Democratic leadership anytime since January 2007. They haven't chosen to do so.
    Indeed they have chosen much more confrontational strategies, and since January 2009 have taken up a version of what the Czech nationalists did to the Austria-Hungarian Empire's parliament, I think it was the 1890's, "the war of the inkpots," purposely disrupting all legislative sessions by hurling pots of India ink at their opponents. They could seek a truce, a new bargain any time they wanted to, they haven't wanted to seek nice negotiated peace so normal business could resume.

  3. ....they could reform the Senate to allow for majority confirmation of executive branch nominees.

    No such reform is necessary. No executive branch nominee needs a Senate super-majority for confirmation.

    What they need is a super-majority for mere consideration.

    Because the Republican minority, representing, and being composed of, real Americans, is the sole repository of the popular will, and hence the only source of legitimate government.

    A mere nose-count cannot confer the Mandate of Heaven.

    The strangest career of a political term in the last two centuries isn't that of the word "liberal", it's that of the word "republican".

    Today it means "divine right monarchists", or "sede-vacantists", depending on how the last election went.


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