The OLC Opinion on Obama’s Recess Appointments

Out of the blue this morning, the Obama Administration has released the OLC opinion it relied on in making last weeks recess appointments of Richard Cordray to the CFPB and others to the NLRB. Several legal analysts and pundits have lobbied publicly and privately for the memo, which almost certainly existed, to be released, maybe the most cogent of the public pleas being made by Jack Goldsmith at Lawfare. Honestly, I agreed fully with Jack, but since the White House was reticent to admit it even existed, and since (as Josh Gerstein pointed out) a 2nd Circuit opinion from 2005 likely meant it was not subject to FOIA, I was not sure how soon it would meet public eyes.

Well, here it is in all its glory.

While some had suggested the reason the White House would not discuss whether there even was an opinion, much less release it, was that the OLC did not support the President’s ability to so recess appoint. I never particularly gave this much credit, even though Obama clearly is not above acting contrary to OLC advice, he did exactly that regarding the Libya war action. And, indeed, here the OLC did support his action in their 23 page opinion.

Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power—Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921) (“Daugherty Opinion”)). Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.

As I previously have noted, the entire “block” of the President’s recess appointment power is predicated upon the Article I, Section 5 provision in the Constitution that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days”. And, so upon what exactly does the OLC hang their hat on that the three day periods do not prevent a “recess” within the meaning of a President’s Article II, Section 2, Clause 3 recess appointment power? Mostly some reasonably thin quotes from GOP Senators that were not directly on point, and some spare language culled from an otherwise non-definitive webpage at the Senate site:

Public statements by some Members of the Senate reveal that they do not consider these pro forma sessions to interrupt a recess. See, e.g., 157 Cong. Rec. S6826 (daily ed. Oct. 20, 2011) (statement of Sen. Inhofe) (referring to the upcoming “1-week recess”); id. at S5035 (daily ed. July 29, 2011) (statement of Sen. Thune) (calling on the Administration to send trade agreements to Congress “before the August recess” even though “[w]e are not going to be able to consider these agreements until September”); id. at S4182 (daily ed. June 29, 2011) (statement of Sen. Sessions) (“Now the Senate is scheduled to take a week off, to go into recess to celebrate the Fourth of July . . . .”); 156 Cong. Rec. at S8116-17 (daily ed. Nov. 19, 2010) (statement of Sen. Leahy) (referring to the period when “the Senate recessed for the elections” as the “October recess”); 154 Cong. Rec. S7984 (daily ed. Aug. 1, 2008) (statement of Sen. Hatch) (referring to upcoming “5-week recess”); id. at S7999 (daily ed. Aug. 1, 2008) (statement of Sen. Dodd) (noting that Senate would be in “adjournment or recess until the first week in September”); id. at S7713 (daily ed. July 30, 2008) (statement of Sen. Cornyn) (referring to the upcoming “month- long recess”); see also id. at S2193 (daily ed. Mar. 13, 2008) (statement of Sen. Leahy) (referring to the upcoming “2-week Easter recess”).

Likewise, the Senate as a body does not uniformly appear to consider its recess broken by pre-set pro forma sessions. The Senate’s web page on the sessions of Congress, which defines a recess as “a break in House or Senate proceedings of three days or more, excluding Sundays,” treats such a period of recess as unitary, rather than breaking it into three-day segments.

Nice argument, marginally compelling, but certainly not authoritative. There are numerous pages devoted to a discussion of the historical use and practice of recess appointments during which the OLC concludes that a recess of twenty (20) days is indeed a sufficient recess to permit recess appointments. That is all well and good, but nobody really would have disputed that, as it was nearly universally agreed by this point in history that any recess of ten or more days sufficed; the only questions were did the 3 day ruse interrupt a longer recess and, if so, could a President appoint in gaps less than three days.

The key statement, as it pertains to how certain the OLC (or anybody else for that matter) is on this issue is this:

Due to this limited judicial authority, we cannot predict with certainty how courts will react to challenges of appointments made during intrasession recesses, particularly short ones.

Interestingly, in making this conclusion, the OLC cites Evans v. Stephens, which I have long pointed out stands for the proposition that there does not currently exist any defined limit as to what is “too short of a recess”.

The second half of the OLC memo explores in more detail whether the 3 day ruse is sufficient and effective to block a President from the making of recess appointments. Quite frankly, it is mostly a pretty rambling and self serving discussion at that point, and does little to add to the cause. The one interesting part is a cite to the Federalist Papers, which I always find interesting and instructive:

The Clause was adopted at the Constitutional Convention without debate. See 2 The Records of the Federal Convention of 1787, at 533, 540 (Max Farrand ed., rev. ed. 1966).14 Alexander Hamilton described the Clause in The Federalist as providing a “supplement” to the President’s appointment power, establishing an “auxiliary method of appointment, in cases to which the general method was inadequate.” The Federalist No. 67, at 409 (Clinton Rossiter ed., 1961). The Clause was necessary because “it would have been improper to oblige [the Senate] to be continually in session for the appointment of officers,” and it “might be necessary for the public service to fill [vacancies] without delay.” Id. at 410.

The one other semi-notable area of support comes on page 17, and delineates the only other interesting case authority other than Evans:

There is also some judicial authority recognizing the need to protect the President’s recess appointment authority from congressional incursion. See McCalpin v. Dana, No. 82-542, at 14 (D.D.C. Oct. 5, 1982) (“The system of checks and balances crafted by the Framers . . . strongly supports the retention of the President’s power to make recess appointments.”), vacated as moot, 766 F.2d 535 (D.C. Cir. 1985); id. at 14 (explaining that the “President’s recess appointment power” and “the Senate’s power to subject nominees to the confirmation process” are both “important tool[s]” and “the presence of both powers in the Constitution demonstrates that the Framers . . . concluded that these powers should co-exist”); Staebler v. Carter, 464 F. Supp. 585, 597 (D.D.C. 1979) (“it is . . . not appropriate to assume that this Clause has a species of subordinate standing in the constitutional scheme”); id. at 598 (“It follows that a construction of [a statute] which would preclude the President from making a recess appointment in this situation—i.e., during a Senate recess and after the statutory term of the incumbent [official] has expired—would seriously impair his constitutional authority and should be avoided [if it] is possible to do so.”); see also Swan v. Clinton, 100 F.3d 973, 987 (D.C. Cir. 1996) (rejecting an argument that “rests on the assumption that a recess appointment is somehow a constitutionally inferior procedure”). But see Wilkinson v. Legal Servs. Corp., 865 F. Supp. 891, 900 (D.D.C. 1994) (concluding, contrary to McCalpin and Staebler, that a holdover provision could preclude a recess appointment), rev’d on other grounds, 80 F.3d 535 (D.C. Cir. 1996); Mackie v. Clinton, 827 F. Supp. 56, 57-58 (D.D.C. 1993) (same), vacated as moot, Nos. 93-5287, 93-5289, 1994 WL 163761 (D.C. Cir. Mar. 9, 1994).

Really, that is about the long and short of the substantive portion of the opinion. As stated above, even by the OLC itself, there is thin precedent and law guiding the question, and it is nearly impossible to know where courts, much less the Supreme Court, will come down on this.

Also the issue of what the relative power of Mr. Cordray’s position of Director really vests, as discussed in this post, is not at issue or discussion in this OLC memo. Both the issue of propriety of the recess appointment as performed by President Obama, and what power it gives to the CFPB and Cordray even if legal, are still extremely cognizable issues for court challenge. Expect just that.

One interesting, and previously unknown (as far as I can discern or am aware of) fact is that the Bush Administration briefed this issue literally days before leaving office:

We draw on the analysis developed by this Office when it first considered the issue. See Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009).

So, the Bush/Cheney regime was actively briefing and filing memoranda on the lawfulness of a President making recess appointments in the face of the 3 day Congressional ruse, eleven days before they left office.

You would think it hard to believe the Bush Administration just wanted to leave a “how to manual” for Barack Obama to make recess appointments in the face of the 3 day ruse. Even though Obama was entering with huge majorities in both chambers of Congress, you would think they would assume they could get at least one of the chambers back (which they certainly did in 2010).

Well, you would be wrong. I spoke to the author of said memo to the file (which is not an “official OLC Memo”) at the Bush OLC, John P. Elwood, and he assured, no, nothing nefarious. It turns out that it was just a memo that had been worked on at some point, and he was cleaning up his office and desk in getting ready to leave office, and filed it officially “in case the next guys might need it”. I have to commend Mr. Elwood for so doing, and his consistency on the issue can be seen in this Washington Post Op-Ed from October of 2010 and this article at the Volokh Conspiracy last week when Obama used his theory and actually pulled the trigger on the recess appointments. Good show Mr. Elwood.

But, the fact that the Obama OLC went to such lengths to cite informal memoranda to the file, and statements by GOP senators of questionable context, exposes quite clearly how desperate they are both for foundation for their argument and support for the proposition it is a non-controversial bi-partisan position. That is, shall we say, a pretty thin raft. The litigation will be coming and it will be hotly contested.

27 replies
  1. Ian Welsh says:

    And if the courts rule against, what army do they have to enforce it? Will Congress actually defund, and will the President allow /that/?

  2. MaryCh says:

    Thanks for a nice summary BMAZ. The ‘thin precedent’ (and discussion) and especially in your concluding paragraph feels like the chill of polarization and loss of comity (between branches as well as within Congress) in recent decades.

  3. scribe says:

    Actually, I thought the memo has a much stronger hook to hang on: that the recess appointment power kicks in when the Senate is not available to do business, receive nominations, act to advise and consent, and so on. In addressing this aspect, the memo makes quite clear that the Senate declared in advance that they would not be doing any business during the pro forma sessions.

    I think it’s a much cleaner case to say that if the Senate declares it’s not going to do business during a specified time, and there are appointments to be made, the recess appointment power can be used.

    As to the relative paucity of precedent, I think it’s fair to say we’ve rarely, if ever, had such a band of assclowns blocking the Senate from doing business for so long, as we’ve had the last couple years. You don’t make legal precedent without someone taking a position and not budging off it.

    Frankly, if I’d been Obama and been confronted with the Rethugs going on about “I want him to fail” and so forth, I’d have been making recess appointments in the Spring of 2009 – the first recess the Senate took.

  4. jerryy says:

    OT McClatchy DC is reporting that Bradley Manning is being recommended for courts martial. As I recall, bmaz you said the prosecution had a good presentation.

  5. bmaz says:

    @scribe: That sounds all well and good in theory, but I think in practice maybe not so much because then you are asking a court to intervene in the determination of what Senate procedural rules are and mean, and substitute its article III determination in that regard in the place of the Congress’ Article I determination. I think that is a lot touchier argument than you think it is because of the independence of the branches and constitutional separation of powers.

  6. bmaz says:

    @jerryy: Well, I said that it was more than good enough to find probable cause to refer the charges to trial. apparently the investigating officer thought so to, but there was never much doubt about that.

  7. joberly says:

    Bmaz–Interesting to see how many times OLC has cited Harry Daughtery’s 1921 opinion. In his day (Harding’s), the AG said that a 28-day recess was more than sufficient to indicate the Senate’s being out of session meaning that it could not “participate as a body in making appointments.”
    The Bush 41 OLC, in 1992, also affirmed the Daughtery opinion and reduced the recess period to 15-18 days at which point the President’s recess-appointment power was triggered. The 20 days the present Senate is out, Jan 3-23, fits the Bush 41 standard.

  8. bmaz says:

    @joberly: Really for some time now, although there is some disagreement, most have argued back and forth at the ten day threshold. The Evans court upheld a judicial recess appointment that was done eight days into an eleven day recess. The question since then is whether it could be done in shorter recesses, and whether the pro forma sessions were sufficient to break up longer recesses so as to nullify the power.

  9. Benjamin Franklin says:

    ” practice of recess appointments during which the OLC concludes that a recess of twenty (20) days is indeed a sufficient recess to permit recess appointments. That is all well and good, but nobody really would have disputed that, as it was nearly universally agreed by this point in history that any recess of ten or more days sufficed; the only questions were did the 3 day ruse interrupt a longer recess and, if so, could a President appoint in gaps less than three days.”

    Back in the Day, Legislators were absent for up to 6 months. Different times we live in. I still think it is
    extracting fly specks from the rat scat to parse this down to 3 days, but even when Congress is in session, they effectively are in recess.

  10. bmaz says:

    @Benjamin Franklin: I agree with that. But to be fair to the White House, what they are arguing is that this is one 20 day recess between January 3 and January 23 and that the pro forma sessions effectively are meaningless. Now, were I them and having to defend this in court, I would probably argue in the alternative that this is one 20 day recess and the 3 day sessions don’t count, but even if you want to find that the 3 day sessions do count, we still have the authority because there is no minimum time set by the constitution. Neither one of those arguments is the be all to end all, but they are at least cognizable arguments. As are the arguments to the contrary, for that matter.

  11. PeasantParty says:

    I agree that taking this issue further to another branch of government will turn all three upside down. I kept thinking about the Feith and Bolton appts by Bush. Bolton was turned down after being vetted by Congress, yet Bush placed him in office during recess. Evidently, the Goopers have forgotten what their favorite son did. I had to go on the search to find it and voila!

  12. PeasantParty says:

    @PeasantParty: He also made many appts to the Federal Election Board, and pushed the vetting process aside again with this one:

    Charles W. Pickering, Sr. to Federal Appeals Court January 17, 2004, from which he had been blocked twice by the Senate. [25][26]

  13. bmaz says:

    @Benjamin Franklin: Heh, it is just a mess in every direction. I hate the precedent set by Obama; it is a horrible one. I also loathe the incredible level of obstruction that made it arguably necessary to do. I am very squeamish about the courts getting in on either side of this pissing match; that’s bad too.

    The only positive here is that it would be useful for the Supreme Court to lay down some law, one way or the other, so it will be known to this and future Presidents in both parties. Thing is, as I alluded to at comment #5 above, I am not sure they won’t try to duck and thus end up leaving the mess and fire smoldering. Just a freaking mess.

  14. RHIL says:

    @bmaz: Perhaps instead of waiting for some financial services company with bottomless financial pockets to challenge a CFPB decision/order, Richard Cordray should consider filing a declaratory judgment action to confirm his entitlement to be compensated in his rescess-appointed position, citing the Congressional Republican posturing as creating case/controversary. Alternatively, perhaps the CFPB ‘paymaster’ should consider filing (or joining) such an action to confirm his/her authority to issue paychecks to Cordrary, citing the potential personal responsibility for making payments that might in the future be determined to have been unauthorized. In either case, who would be on the other side?

  15. emptywheel says:

    @scribe: As I just noted on Twitter, OLC should have said, “Until such time as the Senate some discernable sign of being functional, POTUS may consider them to be in recess.” Cause, really, at this point we’ve paid them for a couple of years of dysfunction already. Grassley is already squawking about what gall it takes for the President to actually demand they work when they claim they’re working (even when they’ve said they won’t be).

    It’d be nice to turn this all into an object lesson about how little work they actually do. And yes, if they have to stay in DC and do work rather than go suck up to donors, I’d take that too.

  16. scribe says:

    @bmaz: Well, the opinion makes the point that the Senate announced in advance it would not be open for business and when, so the Article III court does not really have much to do in terms of subtle determinations that might impinge on separation of powers.

    And then, of course, you have the issue of standing, as in who gets to challenge the appointment.

  17. scribe says:

    @RHIL: If you had read the opinion, you would have noted an extended discussion of an act which provides that people appointed under a recess appointment can be paid, and which is taken (by the opinion writer) and is precedent that Congress has acquiesced to paying people appointed under recess appointments just like they pay people appointed the regular way.

    Similarly, there is another discussion about people who are recess appointments exercising the powers of their office, and how the lack of senate confirmation is not a bar to them doing so. Indeed, that discussion appears to vitiate the issue BMAz raised in his post last week, about how the statute creating Cordray’s job limited his powers to being TurboTax Timmy’s peon until he is confirmed by the senate.

  18. bmaz says:

    @RHIL: Interesting thought. Federal courts hate dec judgment actions, but it might would work. Wither way, there will not be much delay; I think Cordray and CFPB engaged in actionable conduct the second he took office and declared CFPB open for business with expanded powers (available only once there was a director in place) and they did that the first day.. That generated actionable claims by certain entities that had not previously yet been under the CFPB’s jurisdiction. So the litigation is a coming.

  19. bmaz says:

    @scribe: Yep, and I could be wrong, but I don’t think the Senate gets standing here. They can weigh in as an amicus, but I don’t see standing.

  20. bmaz says:

    @scribe: Yeah, I didn’t find that part of the opinion all that compelling necessarily, I think that is still a debatable question. Specifically, it said nothing more than I noted in my previous post that have full power of a confirmed director is the presumption. The question still maintains as to whether that holds here too, or if certain powers do not accrue because he is not confirmed. As I discussed with Jon Shields, I think it ends up that the powers are accrued and vested same as if Cordray is confirmed, but that is far from certain; it, too, is a cognizable issue.

  21. EH says:

    I have to think they would have sat on this if it wasn’t an election year. It just doesn’t make sense given his past behavior.

  22. bmaz says:

    @EH: You know Earl, I think that is right; it is too in your face for the real Obama. I was shocked he pulled the trigger even in an election year to be honest. But the twofer of getting the folks in desperately needed positions, feeding chum to a fairly angry progressive base and being able to play it off the GOP for bonus points of contrast for the rest of the year, was apparently enough to do it.

    All of those points are positive. Hate the precedent still, but there were a lot of reasons to give it a go for Obama.

  23. JohnLopresti says:

    From CRS’ RL33310 (H.Hogue, M.Bearden Nov 8,2008 “Recess Appointments Made by President George W. Bush, January 20, 2001-October 31, 2008”) affords a list which includes

    fulltime Bush recess appointees

    Eugene Scalia Solicitor, Department of Labor 1/11/2002

    Charles W. Pickering Judge, U.S. Court of Appeals for the Fifth

    William H. Pryor Judge, U.S. Court of Appeals for the
    Eleventh Circuit

    John R. Bolton Representative of the U.S. to the United

    Alice S. Fisher Assistant Attorney General — Criminal
    Division, Department of Justice

    Hans von Spakovsky Member, Federal Election Commission 1/4/2006

    parttime Bush recess appointees

    John R. Bolton Representative of the U.S. in the United
    Nations Security Council

    John R. Bolton Representative of the U.S. to Sessions of the
    United Nations General Assembly

    However, CRS has a penchant for avoiding depiction of contextual controversies. As I recall, the Democratic party leadership in the Senate utilized pro forma to countervail against Bush appointments in his second term. I suppose DNC has its own version of those successful strategies. The above-cited Hogue and Bearden study has a nice history section.

    For his part, RCordray for twenty years was a member of the chamber in an OH city.

    BLT supplied a short mention of a topic from bmaz’s prior post:

    The Dodd-Frank Act that created the CFPB includes language that the agency cannot exercise its full powers unless a Senate-confirmed director is in place. When questioned whether a recess appointment fulfills that requirement, Cordray responded, “The bureau isn’t arriving at a legal interpretation of that language. That’s going to be left to others to deal with….It’s my understanding that language is common to many statutes.”

  24. bmaz says:

    @JohnLopresti: Oh, it is common generally to many other statutes enabling agencies and appointed positions therein; however, the way it is done in this case is very different than anything I have ever seen or that anybody else I have chatted with has found a direct parallel for. I still think it should be resolved that way (i.e. Cordray gets full power), but I wouldn’t bet much money on it.

  25. JohnLopresti says:

    @bmaz: I thought Warren’s design might have been part of that outcome, from her time as an executive appointee czar to setup the department. It’s more research than I have done, yet, though, to measure the D-F Act standard against the czar-produced configurations. The Republicans are going to hope to minimize the effectiveness of the department, just to remain faithful to their approach to less government is better than excesses of oversight. Though I thought Cordray’s pro-business comments refreshing; he just wants the sector to play fair.

  26. Ronald Bleier says:

    I’d like to see discussion of whether Obama maneuvered in such a way as to make the appointment problematical. We understand that like the Republicans he’s totally against consumer protections; and that he made sure that Liz Warren didn’t head it; and ensured that the appointment would come as late in the date as possible; and now we see it’s going to be perhaps successfully challenged. An end to consumer protection. Habeas corpus anybody?

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