Obama Doubles Down on Lawless Czar Appointment

FrontPage Magazine/ Joseph Klein

On January 4, 2012 President Obama announced four unilateral appointments, citing the Recess Clause of the Constitution. These involved the appointment of the first director of the new Consumer Financial Protection Bureau, former Ohio Attorney General Richard Cordray, and appointees to fill three vacancies on the National Labor Relations Board. Predictably, the Obama Justice Department ratified his abuse of his constitutional recess appointment power. In a legal memo dated January 6, 2012, Virginia A. Seitz, the assistant attorney general for the Office of Legal Counsel, concluded that the Senate’s “pro forma” sessions counted as recesses even though the Senate did not regard them as recesses. Why? Because the president says so.
Seitz claims that if during any period the Senate cannot actually conduct business on the spot and is “unavailable to perform its advise-and-consent function,” the president is free to deem the Senate in recess and make his own “recess” appointments. The absurdity of such logic means that any time between Friday and Monday when the Senate often does not conduct official business, the president can make all of the appointments he wants to.
Seitz admits that the practice of holding “pro forma” Senate sessions that were not deemed recesses by the Senate began when the Democrats controlled the Senate and a Republican occupied the White House:

Beginning in late 2007, and continuing into the 112th Congress, the Senate has frequently conducted pro forma sessions during recesses occurring within sessions of Congress… The Senate Majority Leader has stated that such pro forma sessions break a long recess into shorter adjournments, each of which might ordinarily be deemed too short to be considered a “recess” within the meaning of the Recess Appointments Clause, thus preventing the President from exercising his constitutional power to make recess appointments.

Seitz even quotes a 2007 statement by Senate Majority Leader Harry Reid (D-Nev.): “[T]he Senate will be coming in for pro forma sessions . . . to prevent recess appointments.”
Reid is still the Senate Majority Leader under whom the very same pro forma procedure is being followed this time around. The only real difference – there is now a Democrat occupying the White House.
Seitz tries to draw another distinction between then and now. In 2007-2008, she says, the Senate really wanted to block recess appointments by using the pro forma sessions. This time, Seitz argues, the House of Representatives made the Senate do it by refusing to pass any resolution to allow the Senate to recess or adjourn for more than three days: More >>