OLC Releases Memo on Obama Recess Appointments
by Justin Shubow
Posted January 12, 2012, 6:52 PM
President Obama has released the memo the Justice Department's Office of Legal Counsel wrote regarding his controversial recess appointments. Professor Bruce Ackerman and others had previously asked Obama to release the legal advice he received. As CNN reports, the opinion is dated January 6, which is two days after Obama announced the appoinments:
In an internal opinion, the Justice Department said the president has the authority to make recess appointments during pro-forma Senate sessions in which no business is to be conducted. It said the brief pro-forma sessions called for the purpose of preventing recess appointments "do not have the legal effect of interrupting an intrasession recess long enough to qualify as a 'Recess of the Senate under the Recess Appointments Clause.'"
"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," said Virginia Seitz, the assistant attorney general who heads the Office of Legal Counsel.
The opinion, dated January 6 -- two days after the president announced the appointments -- is certain to re-ignite a bitter partisan debate in which furious Republicans may attempt to block an array of other appointments and Democratic initiatives.
The opinion came from the Office of Legal Counsel, whose top lawyers are part of the Obama administration and answer to Attorney General Eric Holder, who is also appointed by the president. It controls only the actions of the administration and its agencies.
At the Volokh Conspiracy, John Ellwood analyzes the memo in detail, including its dating:
The OLC opinion was signed January 6, two days after the recess appointments, but the production of such a detailed opinion on January 6 suggests that the White House Counsel asked the question in advance of the appointments.