Legal Memorandum Finds Bi-Partisan Support for President’s Recess Appointments

And The Dismal Political Economist Has the Definitive Answer as to Whether They Were Legal.

Earlier this year the President determined that the sham session of the Senate was a sham session and that as a result the Constitution allowed him to make “recess” or interim appointment that required Senate approval without having the Senate take a vote.  Holding the Senate in a sham session to prevent this started with the Democrats, with Sen. Harry Reid preventing Pres. George W. Bush from making recess appointments.

With Mr. Obama by-passing a Senate vote for the very simple and logical reason that the Senate will not take a vote, Republicans were outraged.  They argue that since the Senate is technically in session, a session that is charged with doing no business whatsoever, that prevents the President from making a recess appointment. 

Republicans demanded to know if the Justice Department had vented the legality of the Obama position.  It turns out they have.

In the 23-page document, Virginia A. Seitz, the assistant attorney general for the Office of Legal Counsel, concluded that the Senate’s “pro forma” sessions — in which a single senator comes into the chamber to bang the gavel every three days — could not prevent Mr. Obama from being able to exercise his constitutional power to appoint officials when the body was in recess.

“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,” Ms. Seitz wrote.

Furthermore, the Justice Department drew in part upon a legal position by a former member of the Bush Justice Department.

Ms. Seitz’s memorandum cited a previously undisclosed memorandum completed in January 2009 by a Bush administration lawyer in the Office of Legal Counsel, John Elwood, saying she was drawing on his analysis. After leaving government, Mr. Elwood wrote that presidents have the authority to take such a step.

The Republicans have a case to make, specifically that a sham session is still a session and that the Constitution is silent on the issue.

Senator Mitch McConnell of Kentucky, the Republican leader, denounced the move the day it happened, saying that Mr. Obama had “arrogantly circumvented the American people” and endangered “Congress’s role in providing a check on the excesses of the executive branch.”’

So what is the correct answer?  Does the President have the authority to make recess appointments during a sham session of the Senate?  The answer to that question is

We Don’t Know!

This issue is a matter of interpretation of the law, a job which every one except Newt Gingrich believes is a matter for the Courts, probably the Supreme Court.  And so that is where the matter will be settled, as well it should be.  It’s how the country works, and in this case that is exactly how it should work.

If Mr. Gingrich were, say, a Ph. D. in history and a historian and had been a college professor, he would know that.