Search  |  Login  |  Register

By Matthew Clark1326519760000

The U.S. Department of Justice (DOJ) Office of Legal Counsel has just released a memo backing President Obama’s “recess” appointments. The memo, authored by an Obama political appointee who herself was confirmed by the U.S. Senate, claims that “the President has the authority under the Recess Appointments Clause to make appointments during this period” – a period where the Senate was still in session.

This is a sharp departure from longstanding precedent from the Justice Department.

The Justice Department memo dated January 6, 2012 – two days AFTER President Obama made four claimed “recess” appointments – states:

The convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a “Recess of the Senate” under the Recess Appointments Clause. In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.

The memo goes on to claim that because the “Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner.” Thus, the Justice Department is relying on facts that haven’t yet occurred to justify these appointments.

The DOJ admits that the question surrounding these appointments “is a novel one, and the substantial arguments on each side create some litigation risk for such appointments.” In support of its argument the DOJ relies on a federal appeals court decision upholding the appointment of a federal judge made during an “eleven-day intersession recess” – a recess in which the Senate held no sessions. Here, the Senate is holding pro forma sessions every three days.

Again the memo admits that “we cannot predict with certainty how courts will react to challenges of appointments made during intrasession recesses, particularly short ones.”

It goes on to conclude that because the Senate is conducting pro forma session in which it may not conduct any business, the “President may properly conclude that the Senate is unavailable” to conduct business and may make these recess appointments. Stated more simply, the DOJ is claiming that “the President may make recess appointments when he determines that, as a practical matter, the Senate is not available to give advice and consent to executive nominations.”

However, Article 1, Section 5 of the Constitution clearly provides that “Each House may determine the Rules of its Proceedings” – not the President. What the DOJ is essentially stating is that the President has the authority to determine when the Senate is really in session or able to conduct business. This flies directly in the face of the Constitution.

It is clear that the Senate is meeting and that Congress has not agreed to enter a recess. The DOJ opinion, issued after Obama made his appointments, cannot change this fact, no matter what President Obama’s personal opinion is.

We will continue to analyze the DOJ’s memo and keep you informed on this situation as we continue working with Members of Congress on our legal options.

You can read Jay Sekulow’s constitutional analysis of these non-recess appointments here.

Latest in
Constitution

Restoring Our Republic

By Jay Sekulow1432305120477

Red tape in America is rising. Exponentially. It’s suffocating our Constitution and our freedoms. This is confirmed in a report recently released by the Heritage Foundation . The report states that since President Obama took office six years ago, his Administration has issued 184 major rules...

read more

State Department Uses IRS Playbook

By Matthew Clark1432157351344

Yesterday’s revelation that the State Department is processing (read: stonewalling) 50,000 emails from then-Secretary of State Hillary Clinton but that none of those emails will be ready for public consumption until sometime in January 2016 is unsurprising. Those emails cover everything from the...

read more

A Rogue 4th Branch Of Government?

By Jay Sekulow1432046193785

Two years ago this month, we learned of the burgeoning scandal at the Internal Revenue Service (IRS) – the deliberate targeting of conservative and Tea Party groups – a coordinated move to keep these groups on the sidelines during a critical election. We are in federal court representing dozens of...

read more

Bureaucracy Rises, Our Liberties Fall

By Edward White1431954000000

During the 1980s, there was a popular comedy show on the BBC called Yes Minister . The show involved a politician who was often thwarted by a member of the unelected civil service bureaucracy when he proposed legislation or reforms that were not beneficial to the bureaucracy. As in the fictional...

read more