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01/30/2012

OLC's Recess Appointment Opinion
Mike Rappaport

In the past, I have posted here on the narrow original meaning of the Recess Appointments Clause.  See here and here.  I have now analyzed on the Liberty Law Blog OLC's new opinion attempting to justify President's Obama's recent recess appointments based on the idea that the Senate's pro forma sessions were spurious.  While the analysis is not exactly originalism, I hope the connection is close enough to justify referring to it here.  Here is an excerpt:  

To see the problems with the OLC opinion in clearer relief, imagine the following situation.  The Senate is in session, debating measures and passing legislation.  But its rules announce that it will not be conducting any business on advice and consent matters for three weeks – no hearings, no debates, and no votes.  Under the logic of the OLC opinion, why couldn’t the President conclude that he could make a recess appointment during that three week period.  After all, as a practical matter, the Senate is not available to advise and consent on nominations.  Shouldn’t the President be entitled to rely on the Senate’s pronouncements?  That other provisions do not treat this three week period as a recess might be thought irrelevant since those provisions have different purposes.  OLC might seek to distinguish this situation by arguing that the Senate would be in session.  But that begs the question.  The Senate rules said it was in session during the pro forma sessions as well, but OLC ignored those rules for a variety of reasons that also apply to my hypothetical.  Is my hypothetical a reductio ad absurdum or a disturbing prediction of the future if the OLC opinion is accepted – or both?