Senate Judiciary Committee Fires Letter to Justice Department Over Bogus Recess Appointments

Dear Attorney General Holder:

On Wednesday, President Obama deviated from over 90 years of precedent established by the Department of Justice (Department), and the Department’s Office of Legal Counsel (OLC), by recess appointing four individuals to posts in the Administration, namely Richard Cordray as the director of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board, despite the fact that the Senate has not adjourned under the terms of a concurrent resolution passed by Congress. This action was allegedly based upon legal advice provided to the President by the Office of White House Counsel. We write today seeking information about what role, if any, the Department or OLC played in developing, formulating, or advising the White House on the decision to make these recess appointments. Further, we want to know whether the Department has formally revised or amended past opinions issued by the Department on this matter.

In 1921, Attorney General Daugherty issued an opinion to the President regarding recess appointments and the length of recess required for the President to make an appointment under Article II Section 2 of the U.S. Constitution. The Attorney General opined that “no one, I venture to say, would for a moment contend that the Senate is not in session when an adjournment [of 2 days] is taken. Nor do I think an adjournment for 5 or even 10 days can be said to constitute the recess intended by the Constitution.”

The reasoning of the 1921 opinion was given affirmative recognition in subsequent opinions issued by the Department, including opinions issued in 1960, 1992, and 2001.

The Department has also weighed in on the applicable time period for recess appointments in legal filings in federal courts. In 1993, the Department filed a brief in the federal district court for the District of Columbia arguing, “If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate’s ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives.”

Additionally, the Department, via the Office of the Solicitor General, argued in a 2004 brief to the Supreme Court, “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.” This exact argument was also filed by the Solicitor General in another case during 2004. Most recently, the Deputy Solicitor General argued before the Supreme Court in 2010 that “the recess appointment power can work in – in a recess. I think our office has opined the recess has
to be longer than 3 days. ”

Taken together, these authorities by the Department clearly indicate the view that a congressional recess must be longer than three days – and perhaps at least as long as ten 9-in order for a recess appointment to be constitutional. These various authorities have reached this conclusion for over 90 years and have become the stated position of the Executive Branch, including multiple representations before the Supreme Court, regarding the required length of time for a recess in order for the President to make a recess appointment.

Read more at the link above…

FIRE: Harvard Fires Economics Professor over Political Article Published in India

It is really simple. Islamists blow up Hindu’s in horrible attack, professor writes piece about how to combat militant Islamists, censor happy lefties on campus totally freak, and after the Harvard Administration brags about it’s commitment to free speech and academic freedom said professor is fired. FIRE intervenes….

Details at FIRE.