OLC Opinion on Pro Forma Sessions and Recess Appointments Published

For the past week there has been a fair amount of speculation that, because no opinion had yet been posted on its webpage, the Office of Legal Counsel either was not consulted about President Obama’s recess appointment on January 4 of Richard Cordray and three NLRB members, or that it had been consulted and said no recess appointment could lawfully be made while the Senate was conducting pro forma sessions.  

The problem was, as Jonathan Adler noted below, that the White House wouldn’t say publicly whether it had consulted the Justice Department. See here for more. There was understandable concern because of well publicized examples of this Administration obtaining legal opinions from other, less-traditional sources when OLC’s conclusions did not support the action it wished to take.  See here and here for columns by Prof. Bruce Ackerman, here for one by Prof. Michael McConnell, here for a post by Adam White, and here for a post by Ed Whelan.

Well, as I expected, there was indeed an opinion. The Office published it this morning, and it is available here.

Ordinarily, you’d say release of an opinion within a week of relevant executive action is pretty darned fast. After all, OLC opinions sometimes don’t make it on to its website for several months after they’re signed. But given congressional interest and public interest in this matter, this is an instance where simultaneous or near-simultaneous publication (which OLC sometimes manages, see here for an example) might have been helpful. Although Congress and the public does at least have a full explanation of the Administration’s rationale in time to be relevant to the ongoing debate.

More on the opinion later when I’ve had a chance to read it.

UPDATE on contents of the opinion: For starters, in an effort to give its analysis a bipartisan sheen (note the number of Republican Administration OLC opinions it cites), the opinion makes plain what may already have been apparent from my past detailed discussions of the subject, which is that I worked on the OLC’s research into the President’s ability to make recess appointments notwithstanding pro forma sessions back when the Office first considered the subject during the tail end of the Bush Administration. See Op. 4 (citing 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)). The Bush Administration never made such an appointment, however, and the work was never was finalized (and thus, significantly, I wasn’t at liberty to reveal the nonpublic work I’d done).

The OLC opinion was signed January 6, two days after the recess appointments, but the opinion states (Op. 1) that OLC has already advised them about that question, the production of such a detailed opinion on January 6 suggests that the White House Counsel asked the question in advance of the appointments. The opinion formally advises on “whether the President has authority under the Recess Appointments Clause to make recess appointments during the period between January 3 and January 23 notwithstanding the convening of periodic pro forma sessions,” Op. 1 (emphasis added), thus carving out the period when Senator Reid actually did conduct business at the December 23, 2011 session (which was scheduled to be a pro forma session), as noted in my original post.

The opinion, concludes, essentially:

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.’” 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.

Op. 1 (quoting Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power–Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921)).

A more detailed recitation of the opinion’s contents after the jump.

Still here?  

The opinion notes (Op. 2-3) that the pro forma sessions appear to be forced in this case by the House of Representatives’ failure to consent to allow the Senate to recess, thus requiring pro forma sessions to satisfy the requirement of Article I, Section 5, that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .”  The opinion observes (Op. 3) that public statements of the Members of the Senate suggest they do not consider the pro forma sessions to interrupt the recess of the Senate (because they refer to the total duration of the break rather than a series of 3-day breaks), as does the Senate’s webpage, and—perhaps most significantly of all—the body takes steps to provide for appointment of congressional personnel, which it usually only does during longer recesses, “indicating that the Senate recognizes that it is not in session during this period for the purpose of making appointments under ordinary procedures.”  Op. 3.    

The opinion first discusses (Op. 5-8) the lawfulness of an appointment if the recess were a 21-day recess, which is pretty straightforward given the number of recess appointment presidents traditionally have made during far shorter recesses than that.   The opinion then briefly discusses (Op. 9-13) the historic understanding of the Recess Appointments Clause and the political branches’ treatment of it. 

Then comes the meat of the opinion (Op. 13-18), concluding based on three considerations that “the President may determine that pro forma session at which no business is to be conducted do not interrupt a Senate recess for purposes of the Recess Appointments Clause.”  The three considerations are (1) “the Framers’ original understanding of the Recess Appointments Clause and the longstanding views of the Executive and Legislative Branches” (Op. 13-15); (2) “allowing the Senate to prevent the President from exercising his authority under the Recess Appointments Clause by holding pro forma session would be inconsistent with both the purpose of the Clause and historical practice in analogous situations” (Op. 15); and (3) “permitting the Senate to prevent the President from making recess appointments through pro forma sessions would raise constitutional separation of powers concerns” (Op. 16-18). 

The opinion then discusses several counterarguments.  First is the fact that the Senate has employed pro forma sessions in other contexts, such as to satisfy the Adjournment Clause of Article I , section 5, and to meet the Twentieth Amendment’s direction that in the absence of legislation providing otherwise, Congress must convene on January 3.  This is an argument that many current critics have made, and I think it’s one of the strongest counterarguments to OLC’s analysis.  The opinion basically concludes (Op. 18-20) that even if such uses of pro forma sessions are valid for congressional purposes, Congress has power to order its internal processes under the Constitution, see, e.g., U.S. Const., art. I, § 5 (“[e]ach House may determine the Rules of its Proceedings”), and that dones’t imply an ability to frustrate the ability of another branch of government to operate. 

Second, and relatedly, is the argument that the Executive Branch is bound by the Chamber’s own understanding of whether the pro forma sessions have the legal effect of interrupting the recess of the Senate.  This argument specifically has been cited by critics of the recess appointment.  The opinion responds (Op. 20) that the Supreme Court has made clear that Congress’s power to set rules for its own proceedings is not unlimited, and Congress “may not by its rules ignore constitutional restraints or violate fundamental rights.”  United States v. Ballin, 144 U.S. 1, 5 (1892).  (The opinion probably should also have discussed Field v. Clark, 143 U.S. 649 (1892), which is a leading case in this area that has  been cited by critics of the appointment.) 

Third, “it could be argued that the experience of recent pro forma sessions suggests that the Senate is in fact available to fulfill its constitutional duties during recesses punctuated by periodic pro forma sessions,” noting, among other things, that (as noted in my original post) Sen. Reid did in fact conduct business during the December 23 pro forma session.  The opinion states (Op. 21) that “the President may properly rely on the public pronouncements of the Senate that it will not conduct business (including action on nominations), in determining whether the Senate remains in recess, regardless of whether the Senate has disregarded its own orders on prior occasions.”  It notes that adjournment resolutions commonly state that the Senate stands in recess until a specified date or “until the time of any reassembly” ordered by the leaders of the two Houses.  This is not a terriblyly satisfying answer; the fact remains that only a few weeks before this opinion was signed, the Senate took action during what was to be a pro forma session, and the opinion points to no similar action to bring the Houses back early from a recess to support its conclusion that the President is free to disregard or discount recent practice. 

Fourth, “legal precedent addressing the President’s authority to pocket veto during a recess a bill passed by Congress conceivably might be viewed as constraining the President’s recess appointment authority in the current recess.”  Op. 22.  But OLC argued that the two Clauses serve different purposes and that pro forma sessions at which no business can be conducted “simply do[] not address constitutional concerns arising from the Senate’s availability to consider appointments.” Id.

Lastly, the opinion addressed (Op. 23) the fact that then-Solicitor General Elena Kagan sent the Supreme Court a letter in connection with New Process Steel v. NLRB, 130 S. Ct. 2635 (2010).  In arguing that the recess appointment of a member of the NLRB did not moot the controversy there about legal consequences of the absence of a Board quorum, the Solicitor General stated 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,” using the Senate’s 2007 pro forma sessions as an example.  Whoops!  The opinion takes the position that Solicitor General Kagan’s letter “does not answer the question addressed here, whether pro forma sessions at which no business is conducted interrupt a recess that is more than three days long in a manner that would preclude the President from exercising his appointment power under the Clause.” Hmmm.

So there it is.  This really only marks the beginning of the debate in earnest, but at least there has been a fairly full statement of the Administration’s position on this issue.