DOJ Recess Appointment Brief May Bring Sanity Back to Confirmation Process

| Thu Jan. 12, 2012 7:22 PM EST

Last week, when President Obama made a series of recess appointments even though the Senate claimed to be technically still in session, I argued that he ought to make his legal reasoning public. Today he did. It turns out that before he acted he did indeed request an opinion from the Office of Legal Counsel, which placed its opinion on the OLC website earlier this morning. Adam Serwer summarizes:

The opinion from the Office of Legal Counsel, authored by Assistant Attorney General Virginia Seitz, argues that these "pro forma" sessions, which have historically been used by both parties to deny presidents the ability to make executive and judicial appointments, can't be used to block appointments unless the Senate is conducting actual business.

....The opinion relies on previous memos written by Republican and Democratic officials, and it does marshal some strong historical evidence for its interpretation. The opinion quotes Alexander Hamilton writing that the recess clause of the Constitution is triggered when the Senate is not "in session for the appointment of officers," a sentiment echoed by a Senate Judiciary Committee letter from 1905 informing President Theodore Roosevelt about the limits of his authority to make recess appointments.

The bottom line is this: The Justice Department takes the view that when the Senate "is not available to give advice and consent to executive nominations," it is effectively in recess and the president can make appointments. Moreover, the opinion states that the Senate's constitutional authority to set its own rules cannot be used to keep the president from making appointments. Key here is that the opinion doesn't prevent the Senate from blocking appointments—it merely states that the Senate has to actually be in session in order to do so.

The full opinion is here, and it's pretty readable. I'm happy with the reasoning, which concludes that the Senate is only in session if the Senate is, in fact, truly in session and able to conduct business, and I'm happy that the opinion has been made public.

So what's next? I'm not especially happy that the appointment wars have been escalated yet again, but at some point Republicans in the Senate have to agree to some kind of reasonable compromise here. "Advise and consent" shouldn't mean flat out refusal to confirm anyone simply because the other party occupies the White House, and if there's a silver lining to this mess (aside from the fact that both the NLRB and the CFPB get to continue functioning) it's the possibility that Obama's actions will get the Senate leadership to the negotiating table. Senators understandably want to keep their confirmation power intact, along with the leverage it gives them, but both sides need to agree on some kind of restraint. Maybe this will involve time limits for confirmations, maybe it will involve a limit on the number of holds or filibusters senators can mount against presidential appointees, or maybe it will involve something else. But a minority in the Senate shouldn't be allowed to unilaterally bring the executive branch to a halt, and that's increasingly what's been happening. It's time to bring some common sense back to the confirmation process.