TIMOTHY NOAH JANUARY 12, 2012
The Justice department's Office of Legal Counsel has released its memo justifying President Obama's controversial recess appointments. The first thing I noticed was the date. The appointments were made on Jan. 4. The memo is dated Jan. 6. Politico has unnamed officials stating that "in keeping with common practice, the Justice Department shared its legal conclusions with Obama before he made the appointments, but more time was needed to polish the formal opinion." I don't know whether it's "common practice" or not, but the memo does indeed say that DOJ discussed the matter with the president before he went forward: "You asked whether the president has authority under the Recess Appointments Clause ... to make recess appointments during the period between Jan. 3 and Jan. 23 notwithstanding the convening of periodic pro forma sessions. We advised you that he does. This opinion memorializes and elaborates on that advice." Whatever.
I haven't had time to read it. More to come.