by Nicole Flatow
The Justice Department’s Office of Legal Counsel released a memo yesterday explaining the legal justification for President Obama’s recess appointments of Richard Cordray to head the Consumer Financial Protection Bureau and three others to the National Labor Relations Board.
"This is one opinion that is likely to be followed by future presidents,” UNC law professor Michael Gerhardt told Mother Jones. “It's not easy to overturn opinions of the [Office of Legal Counsel], as the history of the [Bush-era] Torture Memos demonstrate."
The memo concludes that Obama was authorized to act under the Constitution’s Recess Appointments Clause, and that the Senate’s attempt to block appointments by holding “pro forma” sessions every few days did nothing to disrupt its recess.
"[W]hile Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess," Assistant Attorney General Virginia Seitz writes in the memo.
Ohio State University’s Peter Shane calls the memo’s argument that Obama made the appointments during what was effectively a 20-day recess the more “institutionally modest” approach. He and others have argued that even during a three-day recess, Obama could have made such appointments.
Bolstering these arguments is the fact that Obama only made appointments to those agencies that were unable to perform essential functions so long as the vacancies remained open.
The CFPB, which had been without a director since it began operating in July, could not regulate nonbank entities such as mortgage lenders and payday lenders, which Cordray called a “top priority” for the agency.
The NLRB would have come to a standstill after the term of board member Craig Becker expired Jan. 3. Because the U.S. Supreme Court held in 2010 that the agency could not legally operate with only two members, the agency would have been immobilized had Obama not filled the board’s vacancies.
"When Congress creates an office, but doesn’t allow the president to fill it, that’s going to force the president to consider what other options he has," said Gerhardt, who co-authored an ACS Issue Brief on judicial nominations reform.
These four nominees are not the only ones that had been left to “cool” their “heels” while the Senate blocks up-or-down confirmation votes. There are 181 other nominees still pending, Bloomberg reports. Seventy-four of those are on the Senate calendar ripe for an immediate up-or-down vote, including 19 judicial nominees (there were 21 when the Senate recessed, but 2 were sent back to Obama).
Professor Shane pointed out that Obama demonstrated “surprising restraint” in appointing just four nominees when obstruction of all nominees has been rampant, but he worries that others will abuse the precedent set by Obama.
In our analyses of President Obama's recent appointments, both Professor [Laurence] Tribe and I stressed that the appointments were limited to vacancies that, if they persisted, would prevent the agencies involved from actually executing the laws they were charged with enforcing. Of course, there is no guarantee that any successor to President Obama (or even President Obama himself on another occasion) will observe such restraint.
Overall, however, Shane calls the memo “a model of the genre,” writing in The Huffington Post:
It is thorough in its analysis, candid about points that are novel or untested, and serious about engaging what it acknowledges to be substantial counterarguments. This is evidence of an OLC that is doing its job.
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