Obama's OLC Offers Embarrassingly Inadequate Defense of Recess Appointments
The Justice Department's Office of Legal Counsel opinion released today, which Richard Epstein discusses here, does little to shore up the constitutional infirmities of Obama's recess appointments. It does make clear that the President's decision depends on an astounding claim: that it is the right of the President to decide how another branch of government—the Senate—conducts its business. According to the OLC opinion, the President can make a recess appointment, even though the Senate is not in adjournment, because in his view it is not capable of receiving and acting on a nomination during the "pro forma" sessions it has been holding.
This shows that President Obama did not learn much about Senate procedure during his short stay in the upper chamber. Senators could appear during the pro forma session and ask for unanimous consent to confirm any nomination pending with the Senate—that is why both parties station at least one Senator on the floor at all times while the Senate is meeting to prevent any quickie confirmation.
But even setting that aside, it is still up to the Senate to decide for itself whether and how to meet, not the President. And it is up to the Senate to decide what it will do on the days that it chooses to meet. If President Obama's view were to be upheld, then a President could make a recess appointment any time that the Senate is in session, simply after deciding that the Senators are not doing any real work and are not capable of acting on his nominations based on what he sees on C-Span.
Of course, one might say that this is inconsistent with the positions of the Bush administration. At least while I was there, we never took the view that we in the executive branch had power over the Senate's authority over its own proceedings. The Obama OLC opinion cites an opinion written toward the end of the Bush second term, one that is not produced, that appears to make the same argument. If so, I think the Bush OLC was mistaken as well, and even though the Bush Justice Department may have wanted to make such appointments, President Bush wisely never did.