The New Republic

Mr. Noah may think the date significant, but this memo sure as hell wasn't written in two days. Looks to me like the work of 2-4 weeks. Hence, the claim that the president was advised of the position, even in detail, before the appointments were made is not only entirely plausible by overwhelmingly likely. The constitutional authority does not in any case derive from the memo. It derives from the Constitution. Where is that mcmahon fellow? Seems that DOJ came out exactly where I did (in less than 2-4 weeks but without any history or citation), tying the Senate being in session directly to the Constitution's definition of a quorum and also implying that appointments during adjournments of less than three days would not be permitted. You see, mcmahon, understanding law doesn't depend on having a title of some sort. It depends on knowing how to use legal sources properly and engage in appropriate modes of legal reasoning. When you know what you are doing, you can come up with strong arguments and discern which are strong and which are not. When you don't know what you are doing, you don't. The authority of the speaker is not of great importance. Bye now.

- roidubouloi

January 12, 2012 at 1:39pm

I am skeptical of the claim that these appointments were legal.

- liberalref

January 12, 2012 at 1:42pm

The quality of the legal writing in the DOJ memo is, in my opinion, very high: thorough and proper use of citation and explanation of history, proper parsing of what has a high degree of consistent authority from what does not, lack of tendentiousness, overall clarity.

- roidubouloi

January 12, 2012 at 1:54pm

Some commenters at TNR are just too funny. Yesterday we had the hysterical caps writer lecturing Timothy on an extra s in the head to his post. Today we have the mad bomber who tells people to shut up and swears at opponents at times, holding forth on proper legal reasoning. Hilarious.

- liberalref

January 12, 2012 at 1:55pm

Care to rebut any of the legal arguments offered by the DOJ, lib, or does your expression of skepticism stand on its own authority?

- roidubouloi

January 12, 2012 at 1:57pm

I take that as an admission, lib, that you don't know anything whatsoever about legal reasoning. Add that to the long and growing list of things you know nothing about -- none of which means you don't freely offer your ignorant opinions. Hilarious. For the record, lib, I have never told you to shut up. I enjoy the inane things you write. I have merely suggested that one who consistently writes things as stupid and uninformed as the things you do might avoid embarrassment by shutting up. But that did assume you are capable of being suffering embarrassment. What was I thinking?

- roidubouloi

January 12, 2012 at 2:02pm

"capable of suffering embarrassment" Not.

- roidubouloi

January 12, 2012 at 2:03pm

Translation from roidese: "The quality of any reasoning which supports my side is high, and that which does not is worthless. I'm a red-eyed mad dog partisan but I attempt to gloss that by sounding knowledgeable and referencing standards." But the standards are double and the knowledge is thin.

- liberalref

January 12, 2012 at 2:03pm

Uuhh, get, lib. Is that supposed to be your rebuttal of the 23 pages of legal reasoning and citation offered by DOJ. Translation from libese: I love to hear myself talk about things I know nothing about, the less the better, and when confronted with my ignorance I will invariably try to divert attention elsewhere. Come on, lib. Take your best shot. I explained my legal arguments in considerable detail in discussion with basman and mcmahon. Poke holes in them if you can (or in the much more detailed expression of similar arguments, with benefit of legal citation, offered by DOJ). Give us all a good laugh, why don't you?

- roidubouloi

January 12, 2012 at 2:10pm

Roid, you are reminding me why I offered to buy you a beverage just under a year ago now. (Offer's still open, by the by. DC's cherry blossoms aren't too many months off.)

- janus

January 12, 2012 at 3:54pm

Ideological incestuousness pays off, left and right.

- liberalref

January 12, 2012 at 4:28pm

Roi, here's from the opinion, which reeks with competence, the part touching on what you and I mooted a bit, my part of that being simple minded and pretty uninformed: .... Third, 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. Twice in 2011, the Senate passed legislation during pro forma sessions by unanimous consent, evidenced by the lack of objection from any member who might have been present at the time. 157 Cong. Rec. S8789 (daily ed. Dec. 23, 2011); id. at S5297 (daily ed. Aug. 5, 2011). During one of these sessions, the Senate also agreed to a conference with the House, and messages received from the House earlier in the intrasession recess were put into the Congressional Record. 157 Cong. Rec. S8789-90 (daily ed. Dec. 23, 2011). Conceivably, the Senate might provide advice and consent on pending nominations during a pro forma session in the same manner. We do not believe, however, that these examples prevent the President from determining that the Senate remains unavailable to provide advice and consent during the present intrasession recess. The scheduling order under which the pro forma sessions are held during this recess expressly provides that there is to be “no business conducted.” 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2001). In our judgment, the President may properly rely on the public pronouncements of the Senate that it will not conduct business (including action on nominations), in determining whether the Senate remains in recess, regardless of whether the Senate has disregarded its own orders on prior occasions. Moreover, even absent a Senate pronouncement that it will not conduct business, there may be circumstances in which the President could properly conclude that the body is not available to provide advice and consent for a sufficient period to support the use of his recess appointment power. It is common for resolutions of adjournment authorizing extended intrasession recesses to provide that the Senate “stand[s] recessed or adjourned until [a specified date], . . . or until the time of any reassembly” ordered by the leaders of the two Houses “as they may designate whenever, in their opinion, the public interest shall warrant it.” See, e.g., H.R. Con. Res. 361, 108th Cong. (2004). That potential for reassembly by itself does not deprive an extended Senate absence of its character as a recess. In fact, the Senate had adjourned pursuant to such a resolution before the intrasession recess during which Judge Pryor was appointed to the Eleventh Circuit. That recess appointment was approved by this Office, see Goldsmith Memorandum, and upheld by the court of appeals en banc, see Evans v. Stephens, 387 F.3d 1220. Here's John Elwood's take on this argument and and some others that were considered in the opinion: ...The opinion then discusses several counterarguments.  First is the fact that the Senate has employed pro forma sessions in other contexts, such as to satisfy the Adjournment Clause of Article I , section 5, and to meet the Twentieth Amendment’s direction that in the absence of legislation providing otherwise, Congress must convene on January 3.  This is an argument that many current critics have made, and I think it’s one of the strongest counterarguments to OLC’s analysis.  The opinion basically concludes (Op. 18–20) that even if such uses of pro forma sessions are valid for congressional purposes, Congress has power to order its internal processes under the Constitution, see, e.g., U.S. Const., art. I, § 5 (“[e]ach House may determine the Rules of its Proceedings”), and that dones’t imply an ability to frustrate the ability of another branch of government to operate.  Second, and relatedly, is the argument that the Executive Branch is bound by the Chamber’s own understanding of whether the pro forma sessions have the legal effect of interrupting the recess of the Senate.  This argument specifically has been cited by critics of the recess appointment.  The opinion responds (Op. 20) that the Supreme Court has made clear that Congress’s power to set rules for its own proceedings is not unlimited, and Congress “may not by its rules ignore constitutional restraints or violate fundamental rights.”  United States v. Ballin, 144 U.S. 1, 5 (1892).  (The opinion probably should also have discussed Field v. Clark, 143 U.S. 649 (1892), which is a leading case in this area that has  been cited by critics of the appointment.)  Third, “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,” noting, among other things, that (as noted in my original post) Sen. Reid did in fact conduct business during the December 23 pro forma session.  The opinion states (Op. 21) that “the President may properly rely on the public pronouncements of the Senate that it will not conduct business (including action on nominations), in determining whether the Senate remains in recess, regardless of whether the Senate has disregarded its own orders on prior occasions.”  It notes that adjournment resolutions commonly state that the Senate stands in recess until a specified date or “until the time of any reassembly” ordered by the leaders of the two Houses.  This is not a terriblyly satisfying answer; the fact remains that only a few weeks before this opinion was signed, the Senate took action during what was to be a pro forma session, and the opinion points to no similar action to bring the Houses back early from a recess to support its conclusion that the President is free to disregard or discount recent practice.  Fourth, “legal precedent addressing the President’s authority to pocket veto during a recess a bill passed by Congress conceivably might be viewed as constraining the President’s recess appointment authority in the current recess.”  Op. 22.  But OLC argued that the two Clauses serve different purposes and that pro forma sessions at which no business can be conducted “simply do[] not address constitutional concerns arising from the Senate’s availability to consider appointments.” Id. Lastly, the opinion addressed (Op. 23) the fact that then-Solicitor General Elena Kagan sent the Supreme Court a letter in connection with New Process Steel v. NLRB, 130 S. Ct. 2635 (2010).  In arguing that the recess appointment of a member of the NLRB did not moot the controversy there about legal consequences of the absence of a Board quorum, the Solicitor General stated that “the Senate may act to foreclose [recess appointments] by declining to recess for more than two or three days at a time over a lengthy period,” using the Senate’s 2007 pro forma sessions as an example.  Whoops!  The opinion takes the position that Solicitor General Kagan’s letter “does not answer the question addressed here, whether pro forma sessions at which no business is conducted interrupt a recess that is more than three days long in a manner that would preclude the President from exercising his appointment power under the Clause.” Hmmm. So there it is.  This really only marks the beginning of the debate in earnest, but at least there has been a fairly full statement of the Administration’s position on this...    

- basman

January 12, 2012 at 4:58pm

P.S. I'm not offering these comments to continue the argument. But I thought you would be interested in these cited parts insofar they are a much more, to say the least, sophisticated treatment of the argument I was slouching toward.

- basman

January 12, 2012 at 5:03pm

Or take your traditional way out: Tell us how you have read dozens of books and articles on the subject written by the greatest thinkers in the history of Western civilization (but you cannot explain any of the conclusions they or you reached on the basis of this penetrating research). That's always a good one. A real crowd pleaser.

- roidubouloi

January 12, 2012 at 6:32pm

What I like about the memo, basman, is that it does address the counterarguments. At the end of the day, those who think these self-proclaimed pro forma sessions have some relevant consequence have to deal with the reality that there is no difference in terms of the ability of the Senate actually to conduct any business of a constitutional nature -- adopt legislation, confirm an appointment or treaty -- with a single senator present and with none present. If that is so, then the mere declaration by the Senate that it is in session would have to suffice even if no one is there. American law has long since abandoned deference to such arid formalities as having one person show up with a gavel as opposed to simply declaring the desired outcome -- we don't have the power so to declare, but if we send someone over there with a piece of wood, then we do. The Senate cannot do anything of a constitutional nature without a quorum. I read nothing from Elwood that explains how the Senate can be in session without a quorum present. What period of time between quorums is such that the recess appointment power can be exercised is a separate question as to which there is no clear answer. The consensus, however, appears to be three days, which is why that is the period of time within which these pro forma sessions are purporetedly convened. Kagan was just wrong. She may have cited the example of pro forma sessions, but she didn't write any analysis of whether they suffice to suspend a power that otherwise belongs to the president. The Constitution does not mean whatever any particular individual, including the Solicitor General, may say on a given day. It takes something more than that. What is the positive argument -- beyond that some in the Senate think so -- that a so-called session at which the Senate has not a quorum and cannot adopt legislation or confirm an appointment constitutes the Senate being in session? With all of this back and forth, I have yet to read one. I think that omission quite damning. If no one can offer anything affirmative, then I don't think there is such a positive argument and the claim deserves no weight.

- roidubouloi

January 12, 2012 at 6:51pm

I'm gonna get there, janus. I promise. We are due to visit a variety of friends in DC before spring is over. _________________ By the way, the opinion reads much as if it were a judicial opinion. It is common in such opinions to distinguish a disagreement, however artificially, rather than simply declare the other opinion, in this case that of Kagan, to be wrong. Legal politesse. Invariably, the author of such a judicial opinion will state that the earlier writer was not faced with the same question, as occurs here. And, indeed, the reference in the Kagan opinion would be considered obiter dictum as it was not the subject of her analysis as it is the subject of the DOJ opinion. This is just how common law judicial opinions are written and have been written for centuries.

- roidubouloi

January 12, 2012 at 7:04pm

The woman who is now a Supreme Court justice was wrong. So sayeth the roidster. Therefore it must be so. He doesn't offer any good reasons why this might be the case. It is like iron filings lining up above a magnet. A criminal conspiracy - i.e, the Republican Party - is on the other side of this issue, so Kagan has to be trashed in the interests of ideology. R. work backwards to get the desired result. Could you imagine r. as a justice on the high court? It is mighty amusing to contemplate. Oral arguments are taking place: "Blank you, Scalia!" the roidster shrieks. "You are part of a blanking criminal conspiracy. I challenge you to a duel. Oh, that went out in the nineteenth century? Put your dukes up, then. And you best shut up, Roberts."

- liberalref

January 12, 2012 at 7:06pm

Who would want to have a drink with the authoritarian and abusive roid? Well, a fellow authoritarian, of course, and someone who at least admires abusiveness, as long as it is practiced by a person on his side. The other day r. told me to shut up. That is typical of the authoritarian. I have never written that here, or anywhere else, for that matter, and I never will. But then, I believe in tolerance and democracy and free speech. You also know you have gotten to someone when you are so instructed. If that person were confident of his arguments, he wouldn't have to say that. Earlier this week, I had terrible back pain for a couple of days. But then I read some Krugman, and I was better instantly.

- liberalref

January 12, 2012 at 7:26pm

The OLC opinion says these two things on how the issue is one of first impression with substantial arguments pro and con: ...Thereafter, we consider whether the President is disabled from making an appointment when the recess is punctuated by periodic pro forma sessions at which Congress has declared in advance that no business is to be conducted. Based primarily on the traditional understanding that the Recess Appointments Clause is to be given a practical construction focusing on the Senate’s ability to provide advice and consent to nominations, 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 question is a novel one, and the substantial arguments on each side create some litigation risk for such appointments. We draw on the analysis developed by this Office when it first considered the issue. See Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009)... and ...We have considered several counterarguments to our analysis. In our judgment, these points, while not insubstantial, do not overcome the conclusion presented above.... I'll note that Elwood elsewhere before this opinion came out wrote in favour of Obama's recess appointments. In a nutshell, according to the OLC opinion, three of the substantial arguments that judicially could go either way, says the OLC, are as follows by my paraphrase: The first argument is that in other contexts the Senate in pro forma sessions to the same legal effect as full session Senate thus satisfying certain constitutional requirements, most pronouncedly that neither the House or the Senate will without the consent of the other adjourn for more than three days. Pro forma sessions have also satisfied the requirement that in the absence of legislation providing otherwise Congress must convene on January 3d. And another example is for pro forma sessions used to permit a cloture vote to come to fruition ("ripen"). The second argument is that under your Constitution the Senate is empowered to determine its own procedures and that power binds the Executive as to whether pro forma sessions legally interrupt the Senate's recess for the purposes of the President's recess appointment power. Case law has held that the Rules of Proceedings Clause gives the Senate broad power to manage its internal affairs. By analogy to the other exercises of its powers, it has been opined that the Clause would allow the Senate to determine conclusively when it is in session and when it is in recess. The third argument is that the experience of recent pro forma sessions suggests the Senate is available in fact to meet its constitutional obligations during recesses marked by the pro forma sessions. In 2011 in two different of such sessions the Senate passed legislation by unanimous consent evidenced by no opposition from any Senator who could have been there. And in one session, it is noted, the Senate agreed to a conference with the House, and messages received from the House earlier in the intra session recess were put into the Congressional Record. It's noted that the Senate pro forma might provide advice and consent on pending nominations in the same way. I don’t understand the fourth argument. The need for a quorum doesn’t seem to be bothering anyone and I see no reference to it in the opinion save for footnote 17 if I recall what I read. I'm with Elwood, to repeat: ...So there it is. This really only marks the beginning of the debate in earnest, but at least there has been a fairly full statement of the Administration’s position on this...

- basman

January 12, 2012 at 9:27pm

p.s. Here’s the salient paragraph from Kagan’s letter noted by the opinion: …In addition to the retrospective harms engendered by continuing uncertainty over Section 3(b), the need for prospective guidance remains important. Although the recent period-which lasted nearly 27 months-is the longest the Board has ever been with only two sitting members since the Board was expanded to include five members in 1947, the Boardhas also had only two members on prior occasions. And given the complexities and potential length of the Senate confirmation process, multiple vacancies could arise again in the future. Although a President may fill such vacancies through the use of his recess appointment power, as the President did on March 27 of this year, the Senate may act to foreclose this option by declining to recess for more than two or three days at a time over a lengthy period. For example, the Senate did not recess intrasession for more than three days at a time for over a year beginning in late 2007. See Jim Rutenberg, Bush, On His Way Out, Leads Others In, New York Times, Dec. 7,2008, at A39; Henry B. Hope & Maureen Bearden, Congressional Research Service Report for Congress RL33310, Recess Appointments Made by President George W. Bush, January 20, 2001-October 31, 2008, at 6-7 (updated Nov. 3, 2008). Presidents have not in recent decades made recess appointments during intrasession recesses lasting fewer than three days. See Congressional Research Service, Intrasession Recess Appointments (Apr. 23, 2004).2 The Board therefore may face the prospect of being reduced to two members in the future, in which case it may again seek to do what Section 3(b)'s terms permit-delegate all of its powers to a group of three members, two of whom may thereafter act as a quorum… …2 A 1905 report of the Senate Judiciary Committee discussing the Recess Appointments Clause emphasized that the term is "used in the constitutional provision in its common and popular sense" rather than a "technical" sense. S. Rep. No. 4389,58th Cong., 3d Sess. 1 (1905) (reprinted in 39 Cong. Rec. 3823 (1905)). The Committee concluded that "recess" refers to "the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions." Id. at 2. The Senate continues to view that report as authoritative. See Riddick's Senate Procedure 947 & n.46 (1992), http://www.gpoaccess.gov/ riddick/index.html. To this day, official congressional documents define a "recess" as "any period of three or more complete days-excluding Sundays-when either the House of Representatives or the Senate is not in session." 2003-2004 Congressional Directory 526 n.2 (Joint Comm. on Printing, 108th Cong., comp. 2003). reduced…. The opinion says this: … the letter uses the uncertain status of recess appointments during intrasession recesses of three or fewer days to argue that the possibility of recess appointments did not render New Process Steel moot. Thus, it does not answer the question addressed here, whether pro forma sessions at which no business is conducted interrupt a recess that is more than three days long in a manner that would preclude the President from exercising his appointment power under the Clause… I don’t understand how what Kagan is saying here is being distinguished in the opinion from bearing on the issue it’s addressing.

- basman

January 12, 2012 at 9:51pm

Lib, roi did not tell you to shut up, I was there, and even if he did, who gives a shit? He knows and we know full well that you won't shut up, that nothing any of us can say or do will make you shut up, so how is the suggestion that you should shut up, forceless as it is, amount anything other than a restatement of the fact that your posts are pompous, fatuous blather that we could all do without. But wait, before you go around croaking that I, AaronW, piled on and told you to shut up too, let me assure that I'm doing no such thing. By all means keep writing your smarmy, sycophantic little heart out. But please, before you write anything else take up this challenge: write one paragraph that critically assesses SG Kagan's position on recess appointments and lends support to your apparent contention that she is right on the merits and roi, the DOJ and the president are wrong. I must say, it's an amusing spectacle watching you accuse roi of arguing from authority. You never do a single thing on these boards besides argue from authority, liberalref. But by all means show me that I've misjudged you. Write a single sentence that says anything more concrete and original than, "I second that!" or "Thumbs down!" Don't worry, I'm not holding my breath.