GOP Lawmakers Press Holder on Constitutionality of Recess Appointments
By Mary Jacoby | January 6, 2022 7:15 pm

Republican members of the Senate Judiciary Committee are challenging Attorney General Eric Holder to explain the Justice Department’s role in President Barack Obama’s controversial recess appointments.

In a letter to Holder sent today, the Republicans led by Ranking Member Charles Grassley of Iowa asked “what role, if any” the department’s Office of Legal Counsel played in advising or authorizing the move. They also asked whether the DOJ has “formally revised or amended” previous department opinions on recess appointments.

Obama on Wednesday appointed former Ohio Attorney General Richard Cordray to serve as director of the new Consumer Financial Protection Bureau, set up in the wake of the 2008 financial industry collapse. Republicans object to the agency and have refused to act on Cordray’s nomination. Obama also appointed three members of the National Labor Relations Board.

The Senate was in a pro forma session at the time, with most of its members at home for the winter holiday. The tactic was first begun by Senate Democrats during the George W. Bush administration to avoid a formal recess and to block the president’s appointments. White House Counsel Kathryn Ruemmler, in explaining the legal reasoning behind Obama’s appointments, said the Senate cannot use an artifice thwart the president’s constitutional power to make recess appointments. She has said the Senate was effectively in recess.

One point in dispute is how long the Senate must be adjourned to be considered in recess for the purposes of making an appointment. The White House said the Senate was adjourned since Dec. 17, when its members left Washington for home. Pro-forma sessions gaveled in every few days for a few seconds simply to block an appointment can’t trump the president’s constitutional power to make the appointment, the White House lawyer said.

The GOP lawmakers cite a 1921 Department of Justice opinion that the Senate must be adjourned for at least three days and possibly as long as 10 for the president to bypass the Senate nominating process and exercise his constitutional appointment powers.

That opinion was intended to prevent recess appointments made when the Senate was out of town for a long weekend. It was backed up in by subsequent Justice opinions in 1960, 1992 and 2001, the Judiciary Committee members’ letter said.

The letter also asked Holder whether he thought the appointments were constitutional.

Another question Grassley and the GOP lawmakers want to settle is whether the Office of Legal Counsel, which advises the executive branch on the legality of its moves, issued an opinion in this case.

“It is hard to imagine why the White House would refuse to say whether a Department of Justice memo exists, even if they want to keep its contents concealed,” the National Journal quoted former Vice President Dick Cheney’s top chief of staff David Addington as saying.

Now vice president for domestic and economic policy at the Heritage Foundation in Washington, Addington worked closely after the 9/11 terrorist attacks with Office of Legal Counsel lawyer John Yoo, who wrote controversial legal authorizations of torture and domestic spying that thrust the obscure Office of Legal Counsel into the spotlight.


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