Senate Republicans want the legal justification behind President Obama’s decision on Wednesday to make appointments despite the Senate remaining in pro forma session, but the White House so far refuses to detail the legal advice Obama received.
Senate Judiciary Committee ranking member Charles Grassley, R-Iowa, was set to send a letter as soon as Thursday asking Attorney General Eric Holder whether the White House sought advice from the Justice Department on the appointments. Justice’s Office of Legal Counsel previously opined that presidents cannot make recess appointments during Senate breaks of less than three days, a view that would at least complicate the president’s assertion of recess authority on Wednesday.
“The president needs to make clear why there was a change in position and what rationale the White House counsel used to overturn more than 90 years of Justice Department precedent,” Grassley said on Wednesday. “The White House should make the rationale public.”
White House spokesman Jay Carney attributed Obama’s decision to make recess appointments to advice from the White House counsel’s office. Carney and other White House officials have declined to say what, if any, advice the Justice Department provided.
"We routinely consult with the Department of Justice on a range of legal matters, but we also routinely don't delve into the specifics of any confidential legal guidance the president or the White House in general would receive in the course of those consultations,” Carney said on Thursday. “So I mean, I think that's just standard operating procedure."
While the White House may not be required to consult the department, lawyers critical of the White House’s move argued that failure to do so would mark a sharp break with normal practice for major legal questions.
“I don’t think any White House has ever avoided the Department of Justice like this,” said C. Boyden Gray, White House counsel under President George H.W. Bush. “Ignoring DOJ and the Office of Legal Counsel is really a bridge too far.”
The conservative Heritage Foundation is joining calls for the White House to release a legal justification for the appointments.
“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,” said David Addington, who is Heritage’s vice president for domestic and economic policy and served as chief of staff and chief counsel to former Vice President Dick Cheney.
Separate clauses in the Constitution give the president power to make appointments when Congress is recessed, and bar either congressional chamber from recessing for more than three days without permission from the other. Although the Constitution does not define a recess, a 1993 Justice Department memorandum said the two clauses suggest the president lacks power to make appointments if the Senate does not recess for three days or more.
Pro forma sessions, which Senate Majority Leader Harry Reid, D-Nev., used in 2007 and 2008 to block recess appointments and which Republicans forced in this Congress, aim specifically to trigger that three-day prohibition.
The White House has not specifically rejected the three-day limit. Instead, White House officials argued generally on Wednesday that the pro forma sessions intended solely to block recess appointments do not count as interrupting a recess, because the Senate conducts no real legislative business while in pro forma and cannot act on nominations. The White House argues the Senate has effectively been recessed since Dec. 17.
A problem with that claim, Senate Republican staffers noted on Thursday, is that the Senate has conducted significant legislative business in recent weeks. While in pro forma session on Dec. 23, the Senate by unanimous consent passed a two-month extension of a reduced payroll-tax rate, federal unemployment insurance, and a reimbursement fix for physicians who accept Medicare. The chamber also appointed members to a payroll-tax conference committee while in pro forma session last week.
The White House, which celebrated passage of the two-month payroll-tax bill last month, has not addressed how those steps affect claims that the pro forma sessions exclude legislative business.
Julia Edwards contributed to this report.