- 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.

The opinion seems to conflict with one issued by the same office during the Clinton administration, which said as long as Congress was meeting every three days, no recess appointment could be made.

Congress held a pro forma session on Jan. 3, and Mr. Obama made his appointments on Jan. 4.

The Justice Department’s opinion points to a number of public statements by members of Congress saying they are not in session, but grappled with some major sticking points.

For one, the two-month payroll-tax cut bill Mr. Obama signed into law late last month was passed by the Senate in a pro forma session — highlighting the fact that business can occur, when the chamber gets unanimous consent to do so.

The Senate also can receive nominations from the president in pro forma session, though such messages aren’t entered into the record officially until the full Senate reconvenes. Senators cannot introduce legislation without getting unanimous consent from all other members beforehand.

Furthermore, unconfirmed nominations have not been returned to the White House — something Senate rules say must occur if the chamber recesses for more than 30 days. That signals that the Senate does not consider itself in recess right now.

Two years ago, Mr. Obama’s deputy solicitor general, Neal Katyal, told the Supreme Court that the administration accepted the three-day precedent by which other administrations have abided.

Reached by email last week Mr. Katyal, now a professor at Georgetown University, told The Washington Times that “for now at least I am refraining from comment.”

Part of the problem is that the Constitution uses the word “session” to mean different things.

Each two-year Congress is divided into two sessions, and each daily meeting of the House or Senate is considered a session.

Making appointments when Congress has adjourned for the year — what’s known as an intersession recess — has many precedents, including some when that recess was less than three days.

But Mr. Obama acted during an intrasession recess, and for that, there is scant recent precedent.

The issue has popped up on the campaign trail, where Republican candidates have called the mode illegal and urged Congress to pass a law stripping the appointees of power.

Such legislation is unlikely to advance given that Democrats control the Senate and, while most they have been silent on the legality of Mr. Obama’s use of recess powers, still praised the nominees.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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