John Yoo Defends Senate’s Authority to Sit Around and Do Nothing

Yes, it is hysterical, in general, that John Yoo has finally discerned some limits to the President’s authority under Article II now that Obama used a recess appointment to get around Senate obstruction.

The president’s power over what are known as “recess appointments” stems from Article II of the Constitution, which grants him the authority “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The Constitution does not define what a “recess” is — the Senate adjourns for short periods of time, and the question becomes when an “adjournment” becomes long enough to turn into a “recess.” In the past, attorneys general and presidents have thought that an adjournment would have to be longer than at least ten days to become a “recess.”

Particularly given that Yoo has embraced a rather expansive notion of what Youngstown says about Presidential authority regarding activities that aren’t defined under existing statute.

I’m amused, too, by the way Yoo trolls for clients at the end of his column.

Most importantly, private parties outside government can refuse to obey any regulation issued by the new agency. They will be able to defend themselves in court by claiming that the head of the agency is an unconstitutional officer, and they will have the grounds for a good test case. They can call Richard first, me second, for advice!

I hope, for NRO’s sake, they get a cut if Yoo does go on to consult with the Chamber of Commerce, which has threatened to sue.

But I’m most amused by what Yoo has to defend to make his case. John Yoo, arch conservative, defends the right of Senators to sit around doing nothing but reading the paper on the taxpayer’s dime.

It is up to the Senate to decide when it is in session or not, and whether it feels like conducting any real business or just having senators sitting around on the floor reading the papers.

I’ll grant you, the Senate is pretty ineffective and it usually feels like they are, in fact, not doing anything. I’m sure they do have the legal authority to just sit around scratching their collective arse. But I do find it rather cute that John Yoo has come out of his hole to make an inspired defense of Article I authority based on Senators’ rights to do absolutely nothing.

This constitutional lawyer business really is a noble profession.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

19 replies
  1. flashinreno says:

    Common sense should conclude that a pro forma session that cannot muster a quorum has no standing. An adjournment should become a recess 10 days after adjournment unless a session is held with a quorum present some time within 10 days following the adjournment.

  2. William Ockham says:

    I have some originalist constitutional interpretation at least as sound as Yoo’s. When I was in elementary school, recess lasted 30 minutes. Therefore, any time the Senate is gone for more than 30 minutes, then that time period is “during the Recess”. I say Presidents can make recess appointments every night.

  3. scribe says:

    @Greg Brown: Courtiers who say things rich people like to hear, or which can be used to make rich people richer, will always find very remunerative employment and pulpits from which they can be heard.

    Integrity and consistency are not only optional, but actually a real hindrance in that business, though.

    Yoo’s is a sort of intellectual prostitution though, to be fair, with actual high-end prostitutes (paid better than Yoo…) there’s neither any doubt as to what the goods are nor any pretense. They also have more integrity than the likes of Yoo.

  4. SpanishInquisition says:

    @flashinreno: So the payroll tax cut and unemployment benefits extension aren’t valid legislation? A few weeks ago the pro forma session was considered quite valid with the Senate being considered in session to get that legislation passed, now there’s a 180 and suddenly the Senate wasn’t in session afterall.

  5. bmaz says:

    Huh, I wondered if I would come back this morning and find this here, or if i would be forced to write it. You were nicer than I would likely have been.

    Oh, and no, Yoo fool, entities cannot simply “refuse to obey” the fucking law. The law is presumed regular and of legal muster on its face. They can absorb whatever “harm” they feel results and then sue, but you do not get to just blithely disregard.

  6. SpanishInquisition says:

    @bmaz: Isn’t that what Presidents do with signing statements? Specifically Obama is saying that he’s determined part of the NDAA unconstitutional so he’ll just ignore it without going to court first:

    Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This hinders the executive’s ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles. The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.

  7. par4 says:

    At least Parliament has been working to make the House of Lords irrelevant. We need some mechanism to do the same to the Senate.

  8. Jon Shields says:

    Unsurprisingly, Yoo happens to be completey wrong.

    The Senate is in recess right now. No one who knows what they are talking about disputes that. That’s what the unanimous consent order says, and that’s what the Senator wielding the gavel says whenever he ends a pro forma session.

    The only question here is whether short recesses between fake pro forma sessions satisfy the “recess” requirement of the recess appointment clause. Given that the text of the Constitution is silent on any limits to the duration of a recess, I think the administration has wide latitude as far as whether a court finds the appointment valid (particularly because it is not arguing for a position without a limiting principle). If the Senate wants to block recess appointments, they can actually come to work.

  9. Peterr says:

    Clearly the place for Yoo to file a test case would be somewhere in the 9th circuit, so that on appeal, he might be able to argue before his old pal Jay Bybee.

    I’d love to see Bmaz and Marcy liveblog that hearing.

  10. A Conservative Teacher says:

    @flashinreno: Your opinion of whether or not the Senate has adjourned, much like the President’s, means squat. The rules that govern the Senate are the Senate’s- they are an equal branch that is not subject to the whims of a King.

    Has anyone pointed out yet that the Senate actually was in session on Tuesday, hours before Obama’s ‘recess’ appointments? They were called to order at 11:01 AM. They engaged in legislative and executive business. They adjourned over an hour later after completing the session’s business. You can view the calender entry for their session at

    Thus you can argue all you want about what you think of what they did- the truth of the matter is that they had a session.

    There is a real world- recognize it.

  11. bmaz says:

    @A Conservative Teacher: Oh good god, do I have to pay attention just to counter your insipid bullshit? Apparently I must. First off, please refer back to the last substantive response I gave to your drivel.

    Now, you, yourself, stated, in your last wrongheaded comment that there was not just a recess, but an adjournment

    They adjourned over an hour later after completing the session’s business.

    I do not necessarily find comfort or appropriate guidance from the current state of the law; nevertheless, the current state of the law is, despite your duplicitous bleating, that there is no definition, either in the express wording of the Constitution nor relevant caselaw in light of Evans v. Stephens, that stands for the proposition that there is any minimum time limit for an effective “Senate recess” whatsoever.

    You can argue whether that is a good thing or not, and I might even join in such an argument; however, the tripe you have brought here is ill informed and duplicitous bullshit.

  12. NMvoiceofreason says:

    @William Ockham:
    Legally, the Republican­’ts don’t have a leg to stand on.

    During the legislativ­e year, Pro Forma sessions can be used to keep the Senate in session.

    The legislativ­e year ends on December 31st.

    Until a quorum has convened in the New Year, the Senate is not in session.

    Nothing the Republican­’ts can do will change the fact that the Senate was not in session between Midnight December 31st and January 23, when the first quorum will convene.

  13. NMvoiceofreason says:

    @Jon Shields:

    Your argument is a good one, but needs to go a step farther:

    The Senate has not returned to being in session until there is a quorum present.

    The Senate cannot extend a session beyond the bounds of the calendar year.

    No quorum after the end of the calendar year means the Senate was never in session (says nothing about pro forma sessions during the calendar year – only across the year to year boundary).

  14. Govt Mule says:

    Even for a hack like John Yoo, this is a quintessentially shitty argument:

    “It is up to the Senate to decide when it is in session or not, and whether it feels like conducting any real business or just having senators sitting around on the floor reading the papers.”

    So if the Majority Leader says the Senate is not in session, then it’s not in session.

    Then again, it’s hilarious that the RepubliClowns accuse public sector union employees of being bloated, lazy, and incompetent, but Yoo argues that the Republicans in the Senate are entitled to do exactly that. IOKIYAR.

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