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.
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