Shocker: Obama DOJ Perfectly Fine with Unconstitutional Appointments

Kate Hicks

1/12/2012 5:52:00 PM - Kate Hicks

Eric Holder and friends have ignored the very Constitution they're supposed to uphold countless times since Obama took office in 2009 -- our own Katie Pavlich has documented the morally bankrupt department's numerous travails, most specificially Operation Fast and Furious. But it's really something to see the legal reasoning behind the egregious actions.

The DOJ has released its opinion detailing why Obama's non-recess appointments of Richard Cordray to the CFPB and three new members to the NLRB are constitutional. Basically, their reasoning is that the Senate only says it's in session; members aren't actually there to consider an appointment. Therefore, the President may appoint whomever he wishes to various posts.

“We conclude that while 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,” the head of Justice’s Office of Legal Counsel, Virginia Seitz, wrote in a 23-page opinion.

The general thrust of Seitz’s opinion is that the Senate’s pro forma sessions are no obstacle to a recess appointment because the Senate is not truly open for business during sessions that may last only minutes and can involve only a single senator.

“The text of the Constitution and precedent and practice thereunder support the conclusion that the convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a ‘Recess of the Senate’ under the Recess Appointments Clause,” she wrote.

“It could be argued that the experience of recent pro forma sessions suggests that the Senate is in fact available to fulfill its constitutional duties during recesses punctuated by periodic pro forma sessions,” the OLC chief wrote. She noted, however, that the Senate’s scheduling order expressly provided that there was to be “no business conducted” during the pro forma sessions.

“The president may properly rely on the public pronouncements of the Senate that it will not conduct business…regardless of whether the Senate has disregarded its own orders on prior occasions,” Seitz wrote.

So, although the Senate sometimes does conduct business in pro forma, this time, it said it wasn't, and could therefore be considered in recess.

They may have violated the Constitution, but by God, they stuck to the agenda. And that's what matters -- through whatever means necessary.