Senators Fight Back on Appointments

January 6, 2012

Today, Senator Mike Lee joined Senators Charles Grassley, Orrin Hatch, Jon Kyle, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn in signing a letter addressed to Attorney General Eric Holder regarding the recent appointment of four officials to various positions in the Obama administration. Excerpts of the letter are below.


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.”[1]  The reasoning of the 1921 opinion was given affirmative recognition in subsequent opinions issued by the Department, including opinions issued in 1960,[2] 1992,[3] and 2001.[4]

Given the Department’s historical position on this issue and the President’s unprecedented decision to unilaterally reject the years of Department precedent and Executive Branch practice, we ask that you provide responses to the following questions:

(1) Was the Department asked to provide legal advice to the President regarding the decision to issue recess appointments of Cordray, Block, Flynn, and Griffin?  If so, was a formal opinion from the Department prepared?  If so, which office at the Department prepared the advice?  If such advice was prepared, when will it to be made public? 

(2)  If a formal opinion was prepared, provide a copy of that opinion.  

(3)  Attorney General Opinions, such as the one offered in 1921, are essentially the forerunner to opinions that today come from the Office of Legal Counsel, providing legal advice to the President and executive branch on questions of law.  Such OLC opinions are accorded, in the words of one former head of OLC, a “superstrong stare decisis presumption.”  Was the 1921 Attorney General Opinion withdrawn to make way for this new opinion of law that a recess appointment could be exercised when the Senate is in recess for only three days?

[1] 33 U.S. Op. Atty. Gen. 20, 25 (1921). 

[2] 41 U.S. Op. Atty. Gen. 463, 468 (1960) (stating “I fully agree with the reasoning and with the conclusions reached in that opinion.”). 

[3] 16 U.S. Op. Off. Legal Counsel 15, (1992) (concluding that the President could make a recess appointment during an intrasession recess from January 3, 1992, to January 21, 1992). 

[4] 2001 OLC LEXIS 27.

The full list of questions, along with the rest of the letter, is available below.