The Justice Department's Lackluster Defense of Recess Appointments
I have taken a quick look at the tedious memorandum that Virginia Seitz, an Assistant Attorney General in the Justice Department, recently wrote to defend President Obama's controversial recess appointments. It turns out that on this issue, as with so many others, there is a huge amount of historical material to digest before reaching a clear decision about the history of the practice with respect to these appointments. But I fear that any close examination of the endless highways and byways will only increase the uneasiness. In an earlier post, I argued that the entire practice is inconsistent with the text of the constitutional provision governing recess opinions because of the way in which that practice elides the words “that may happen” in the full text. But even if we consider the issue solely as one of constitutional practice, there are several points to note about this effort.
First, the legal authority of recess appointments is quite thin, and there is no Supreme Court authority on the issue. This case may take us there.
Second, there is a huge amount of material within the Executive Branch that quite remarkably supports the President’s position up and down the line. All of this has to be discounted as in-house advice. It is not worthless, but it is hardly dispositive. And, in this case, the number of key conclusions that are prefaced with words like “in our view” or “in our opinion” is very large. The conclusion that the President gets to determine in good faith whether the pro forma sessions count is not really defended. So long as the Senate wants to preserve its prerogatives against the President, he should not be able to deny it that option.
Third, the recess appointments pose a real danger to the entire system of Senate confirmation because of how the President can game the system. This excellent piece by Diana Furchtgott-Roth shows how that can happen. As she notes, too much attention has been given to the appointment of Richard Cordray and too little to the three appointments to the National Labor Relations Board.
Here is how it stacks up. The Republicans had their nominee, Terence Flynn, in by January, 2011, with paperwork completed. But, given the politics of the NLRB, there was no chance that he would be considered without a paired Democrat because of the party-line balance. The Democratic nominees, Sharon Block and Richard Griffin, reached the Senate days before regular session was over on December 15, 2011. There was no paperwork to evaluate them, which meant no chance to go over qualifications, conflicts of interest, past dealings and the like. So the recess appointment not only cut out the Senate, but it also cut out the vetting process as well.
Faced with these serious institutional irregularities, it is utterly misguided to strengthen the hand of the President, and make it a routine practice that--since the Senate must sleep--the President can make these short term appointments with long term adverse consequences for the integrity of public offices and for the continuity of service that is needed in those offices.
My guess is that this issue will hit the courts, and when it does, I don’t think that Ms. Seitz’s memo will carry the day.
- Comment (5)
- · Quote
- · UnfollowFollow (1)
Comments :
Jul '11
Re: The Justice Department's Lackluster Defense of Recess Appointments
Can a GOP president invalidate these appointments immediately using some similar abuse of power? Does this tactic seem as bad to you as it does me for one to do that?
Would a SCOTUS ruling invalidate the recent socialists Obama put in or merely prevent future bogus appointments?
What can be done to legally eliminate the NLRB since union activism seems their goal?
Dec '10
Re: The Justice Department's Lackluster Defense of Recess Appointments
I simultaneously hope for and dread things like this going to the Supreme Court.
Dec '10
Re: The Justice Department's Lackluster Defense of Recess Appointments
Game the system! Thats the Dems for you. They don't have any principles because they don't know what a principle is. They think principle is spreading the grease money around.
This isn't a discussion of where to put the new shelves at the librarian's convention.
GET' EM DR. EPSTEIN. BREAK THEIR LUNGS.
Regards,
Jim
Dec '11
Re: The Justice Department's Lackluster Defense of Recess Appointments
Well if he wants to play it this way, mr. cordrary's appointment ended the moment the senate went home the next day.
May '11
Re: The Justice Department's Lackluster Defense of Recess Appointments
"Controversial" recess appointments? Controversial??? My thesaurus does not mention that word as a synonym for "flagrantly illegal." So I will wait for all the lefties who railed against Bush's signing statements as "hijacking the Constitution" to speak out against this. I'll wait. And wait. And wait, and wait...
Edited on Jan 12 at 5:30pm