- The Washington Times - Thursday, January 12, 2012

The Justice Department reversed course Thursday and backed President Obama’s move last week to use his recess appointment power to install four top officials even though the Senate was holding meetings every three days and considered itself to be in session.

Republicans dismissed the opinion, saying it smacked of politics, but it adds some legal heft to Mr. Obama’s argument that the four appointments — three new members of the National Labor Relations Board and a chief for the Consumer Financial Protection Bureau — are legal.

“We believe our legal argument is very strong [and] will absolutely pass muster,” White House press secretary Jay Carney told reporters at the White House.

The opinion was dated Jan. 6 — two days after Mr. Obama made the appointments. Mr. Carney assured reporters the Justice Department had provided the president with verbal assurances.

Mr. Obama last week bypassed the Senate’s usual confirmation process to install Richard Cordray as head of the CFPB and three other appointees — two Democrats and a Republican — to the NLRB. Mr. Cordray and one of those labor nominees had been delayed by Senate Republicans, though two of the other nominees were sent to the Capitol just two days before legislators finished their payroll tax bill and most of them left town.

All sides agree the issue is likely to end up in court, though a final decision could come well after the recess appointments will have expired.

The crux of the legal dispute is what it means to be “in session.”

Prodded by the House, the Senate is convening every three days in a pro forma session, under which no major business is to be conducted. Still, senators from both parties have considered this to be a session for purposes of preventing recess appointments.

Democrats used the method to stop President George W. Bush from making appointments in 2007 and 2008. Mr. Obama was in the Senate at the time.

Now, his administration says the series of sessions is a sham.

Most senators are out of town and the sessions are run by one senator, with no business allowed to be transacted. That, the Justice Department argues, means the Senate is not able to give advice and consent to the president — and thus not “in session” by any reasonable use of the term. That means Mr. Obama can use his recess powers.

The opinion, released by the Office of Legal Counsel, which acts as the in-house attorneys for the administration, said Mr. Obama has the “discretion” to determine when the Senate is sitting and when it is not.

“We do not believe that the convening of periodic pro forma sessions precludes the president from determining that the Senate is unavailable during an intrasession recess otherwise long enough to support the president’s recess appointment authority,” wrote Virginia A. Seitz, an assistant attorney general.

Sen. Charles E. Grassley of Iowa, the ranking Republican on the Judiciary Committee, said the administration’s reasoning was “unconvincing” and broke with nearly a century’s worth of historical precedent.

“This is clearly an escalation in a pattern of contempt for the elected representatives of the American people,” he said, vowing to push the Senate to fight back.

Story Continues →