Kagan in 2010: Pro-forma Senate sessions enough to block recess appointments

Republicans outraged over the recess appointments of Richard Cordray and three NLRB commissioners argue that the pro forma Senate sessions every three days means that the Senate has not recessed at all. The Congressional Research Service notes that no President in the 20 years prior to Barack Obama’s actions in the past two weeks has attempted a recess appointment unless Congress has been out of session more than nine days. Today, to no one’s great shock, Obama’s own Department of Justice says that these arguments aren’t good enough to stop the President from the exercise of his constitutional power:

President Barack Obama’s decision last week to snub Congress and make a series of recess appointments while the Senate claimed it was technically in session had the legal blessing of the Justice Department, according to a formal legal opinion released Thursday.

“We conclude that while Congress can prevent the president from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess,” the head of Justice’s Office of Legal Counsel, Virginia Seitz, wrote in a 23-page opinion. …

The general thrust of Seitz’s opinion is that the Senate’s pro forma sessions are no obstacle to a recess appointment because the Senate is not truly open for business during sessions that may last only minutes and can involve only a single senator.

“The text of the Constitution and precedent and practice thereunder support the conclusion that the convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a ‘Recess of the Senate’ under the Recess Appointments Clause,” she wrote.

Ironically, as Josh Gerstein points out at Politico, Seitz has her position thanks to the obstruction of Senate Republicans to Obama’s first choice for the OLC position, Dawn Johnsen. However, the date of the opinion is also interesting. Seitz wrote this on January 6th, two days after Obama made his recess appointments. This looks very much like someone trying to fluff out an opinion to make the boss look good, rather than independent legal analysis — perhaps yet another example of the politicization of the DoJ we have seen under Obama and Attorney General Eric Holder.

So did the DoJ have a position on this question prior to six days ago? Actually, they did, Gerstein reports, and it was written by no less a legal authority than the newest member of the Supreme Court — nominated by Obama himself:

Another awkward fact acknowledged in Seitz’s opinion is that less than two years ago the Justice Department sent the Supreme Court a letter-style brief noting that “the Senate may act to foreclose [recess appointments] by declining to recess for more than two or three days at a time over a lengthy period.”

Seitz insisted that the letter, from then-Solicitor General Elena Kagan, didn’t directly address the situation Obama faced earlier this month.

There’s yet another awkward fact, which is that the House apparently did not agree to a full recess, which would be required for the Senate to go into a formal recess. That constitutional requirement might make the legal defense of these appointments more difficult, assuming that any court would be anxious to get in the middle of this food fight between the executive and legislative branches. Other Presidents have used (or abused, depending on one’s point of view at the moment) the ambiguous nature of the term “recess” to their advantage, but precedent may not equal a victory if this goes to court — and if the Supreme Court takes this up, Kagan will have no choice but to recuse herself from the case.

Will it go that far? It might. Those who want to fight the CFPB and the NLRB will challenge a regulation from either at their first possible convenience, and they will undoubtedly argue that the regulation is illegitimate resulting from an illegal appointment. I suspect that the federal courts would prefer to kick the legitimacy of regulation resulting from these appointments back to Congress, but they may be stuck with having to decide whether to accept the definition of a recess from Obama’s DoJ circa 2010 or Obama’s DoJ circa 2012. If they do, the contradictory stances won’t help the President’s case.