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Weak Justification for Executive Overreach

10:00 PM, Jan 12, 2012 • By ADAM J. WHITE
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And that manner of question-begging drives the OLC opinion's cursory treatment of the arguments raised by the other side in this debate. Invoking various precedents and historical materials explaining the Recess Appointments Power, the opinion then concludes that the Senate's efforts to "prevent" the president's recess appointments would "raise constitutional separation of powers concerns." But this, too, puts the cart before the horse: The president's power to make recess appointments does not vest until there is a recess. Yes, the president has constitutional power to make recess appointments during a recess, but the Senate has constitutional power to set its own rules and procedures, and to decide whether to go into recess and thus trigger the president's recess appointment power. (And the House, in turn, has a limited constitutional power to veto the Senate from adjourning for more than three days.)

The OLC's backwards view of the president's and Senate's respective powers is akin (as I previously noted) to the Senate arguing that the president must make a treaty because not to make treaties would unconstitutionally "prevent" the Senate from ratifying treaties. Just as the Senate's power treaty vests only once the president supplies the necessary prerequisite, so it is with the president's recess appointment power, which is triggered only by the Senate going into recess.

The OLC opinion is marred by other flaws of logic. For most of the opinion, OLC stresses that test of whether the Senate is in "recess" must be a "practical" inquiry governed by substance, not form: was the Senate really "available to perform its advice-and-consent function"?  But when faced with the fact that the Senate actually is available during its adjournments, and in some cases even passed legislation and conducted other business during similar "recesses," the OLC suddenly pivots from substance to strict formality: Even though the Senate can do business during pro forma sessions, OLC argues, the Senate's scheduling orders say that there will be "no business conducted," and the president may "rely" on those public pronouncements.

Legal opinions, laden with citations to precedents, are inherently backward looking. But in this case, the most important view is the road ahead. President Obama has dramatically increased presidential power, and in service of an extremely controversial appointment. Republicans will not let Democrats forget this.  Future Republican presidents and presidential nominees will face strong pressure from the base to repay the Democrats in kind. 

Adam J. White is a lawyer in Washington, D.C.

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