Grassley: Seitz a ‘Lackey’ for Authorizing Recess Appointments
By Elizabeth Murphy | January 24, 2022 11:42 am

Sen. Charles Grassley (R-Iowa) will not be letting the controversial recess appointments by President Barack Obama go away quietly.

The ranking member of the Senate Judiciary Committee said in a statement prepared for delivery on the Senate floor Monday that Obama has a “monarchy mentality” and that some in his Justice Department have become his lackeys.

Chuck Grassley (Getty Images)

Earlier this month, Obama appointed former Ohio Attorney General Richard Cordray to serve as director of the newly created Consumer Financial Protection Bureau. He also appointed three others to the National Labor Relations Board. Many Republicans have said the appointments were unconstitutional because the Senate was in a pro forma session at the time, with most of its members at home for the winter holiday. Republican lawmakers pressed Attorney General Eric Holder on the department’s role in the appointments. A week later, the department’s Office of Legal Counsel released its previously confidential post facto authorization of the appointments. The Office of Legal Counsel provides advice to the executive branch on the legality of its actions.

The memo, signed by Assistant Attorney General Virginia A. Seitz, states that the president lawfully used his discretion in appointing Cordray and the others.

Grassley on Monday called Seitz’s impartiality into question.

“And I suppose it is literally true that Ms. Seitz did not stand idly by when the Administration took unconstitutional action:  rather, she actively became a lackey for the Administration. She wrote a poorly reasoned opinion that placed loyalty to the President over loyalty to the rule of law,” Grassley said in reference to the memo. “That opinion… show[s] extreme disrespect for the institution of the Senate and the constitutional separation of powers.”

Grassley said that during her confirmation process, Seitz assured the Senate she would not stand by if the administration was thinking of doing something she believed to be unconstitutional. Grassley said he is now “sorry the Senate confirmed her.” He said he believes it will be the last confirmation she ever experiences.

In the Office of Legal Counsel opinion, Seitz wrote that there was precedent for Obama’s recess appointments.

“In our judgment, 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,” the memo reads. “In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”

Senate Republicans and the administration did not agree on how long the Senate must be adjourned to constitute a recess. In their earlier letter to Holder, the lawmakers cited a 1921 Justice Department opinion that the Senate must be out of session for at least three days and potentially as many as 10 before the president can make a recess appointment. The Jan. 6 opinion details the history of presidential recess appointments, highlighting some made in 11-day recesses and others in 33-day recesses. “We have little doubt that a 20-day recess may give rise to presidential authority to make recess appointments,” the memo states.

The Senate adjourned Dec. 17, only to convene for pro forma sessions every Tuesday and Friday until the lawmakers came back for the new session Jan. 23, the memo states. It goes on to say that pro forma sessions, during which no business is conducted, are not an impediment to the president exercising his recess appointment authority. Senate Democrats began the practice of pro forma sessions to block recess appointments during the George W. Bush administration.

Grassley said that the Office of Legal Counsel’s opinion “reflects the changes that have occurred in the relationship between the Justice Department and the President on the question of presidential power.”


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