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 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.