Virginia Seitz's Legal Opinion on Recess Appointments - NYTimes ...

There?s a lovely literary term for dramas in which there is a lot of excessive emotion and the main characters are driven to all kinds of irrational acts by motives such as revenge and greed. It?s called sturm und drang and we saw a lot of it last week when President Obama made some recess appointments even though the Senate was holding pro-forma sessions (some of them lasting about 30 seconds).

Senator Mitch McConnell lectured that ?Congress has a constitutional duty to examine presidential nominees? and House Speaker John Boehner called it an ?extraordinary and entirely unprecedented power grab.?

I wrote about the recess appointments, and Mr. Boehner?s bold claim, last week. But on Thursday the assistant attorney general for the Office of Legal Counsel, Virginia Seitz, released a detailed opinion on the matter. So I thought I?d go back to the topic with help from Lincoln Caplan, who writes editorials about the law and the constitution.

That O.L.C. advises the president and the rest of the administration on whether a particular action or policy is legal and constitutional. You may remember it from the Bush years, when administration officials and Republicans in Congress cited its authority to justify things like torture and warrantless wiretapping. Not to mention recess appointments.

In fact, Ms. Seitz?s memo draws from one by her predecessor, Jack Goldsmith, which outlined the legal rationale for George W. Bush?s recess appointment of John Bolton, the out-of-control neo-con, as ambassador to the United Nations in December 2005.

In her memo, Ms. Seitz says ?the last five presidents have all made appointments during intra-session recesses of 14 days or fewer.? She argues that the authors of the constitution intended the recess appointment authority to cover times when the Senate is not available to ?advise and consent.? If the Senate is holding only pro-forma session that last half a minute, Ms. Seitz reasons, then it?s not actually available?and the president is free to make appointments.

Ms. Seitz doesn?t wade into this issue, but even when this Senate has been in full session, it generally hasn?t been available (read: willing) to advise and consent. Republicans have blocked perfectly qualified nominees as part of an overall plan of never giving Mr. Obama anything he wants in hopes that the government will be in such a state of paralysis that voters will replace him with a Republican in the fall.

Linc said: ?Mr. McConnell is absolutely right when he says that this is a matter of separation of powers, but exactly the opposite of how he meant it: the Supreme Court has also said that ?the separation of powers doctrine requires that a branch not impair another in the performance of its constitutional duties.??

It?s a persuasive case. I?ll have to remember it when the next Republican president pulls the same trick.

Source: http://loyalopposition.blogs.nytimes.com/2012/01/13/recess-appointments-and-partisan-politics/

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