The Volokh Conspiracy

In today’s NYT, Charlie Savage reports on how President Obama evolved from a fierce critic of unilateral exercise of executive power to a proponent.

As a senator and presidential candidate, he had criticized George W. Bush for flouting the role of Congress. And during his first two years in the White House, when Democrats controlled Congress, Mr. Obama largely worked through the legislative process to achieve his domestic policy goals.

But increasingly in recent months, the administration has been seeking ways to act without Congress. Branding its unilateral efforts “We Can’t Wait,” a slogan that aides said Mr. Obama coined at that strategy meeting, the White House has rolled out dozens of new policies — on creating jobs for veterans, preventing drug shortages, raising fuel economy standards, curbing domestic violence and more.

Each time, Mr. Obama has emphasized the fact that he is bypassing lawmakers. When he announced a cut in refinancing fees for federally insured mortgages last month, for example, he said: “If Congress refuses to act, I’ve said that I’ll continue to do everything in my power to act without them.”

This is not a new phenomenon. Both Presidents Clinton and George W. Bush relied upon executive authority to advance policy initiatives Congress failed to enact, though sometimes these efforts were rebuffed in court. What’s interesting, notes political science professor William G. Howell in the story, is President Obama’s transformation on the issue.

Some of the President’s initiatives involve aggressive assertions of executive authority, many of which are likely to be challenged in court. The D.C. Circuit is currently mulling the legality of the Environmental Protection Agency’s effort to rewrite the Clean Air Act with its “tailoring rule” and a lawsuit is pending against the President’s recess appointments to the National Labor Relations Board. Other initiatives, such as the imposition of conditions on waivers from No Child Left Behind’s requirements, may be more difficult to challenge.

The story also talks about the politics of the President’s actions.

The unilateralist strategy carries political risks. Mr. Obama cannot blame the Republicans when he adopts policies that liberals oppose, like when he overruled the Environmental Protection Agency’s proposal to strengthen antismog rules or decided not to sign an order banning discrimination by federal contractors based on sexual orientation.

The approach also exposes Mr. Obama to accusations that he is concentrating too much power in the White House. Earlier this year, Senator Charles E. Grassley, Republican of Iowa, delivered a series of floor speeches accusing Mr. Obama of acting “more and more like a king that the Constitution was designed to replace” and imploring colleagues of both parties to push back against his “power grabs.”

But Democratic lawmakers have been largely quiet; many of them accuse Republicans of engaging in an unprecedented level of obstructionism and say that Mr. Obama has to do what he can to make the government work. The pattern adds to a bipartisan history in which lawmakers from presidents’ own parties have tended not to object to invocations of executive power.

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

Some corners of the internet were abuzz this weekend over a new Executive Order signed by President Obama on Friday concerning “Natural Resources Defense Preparedness.”  The EO, which seeks to ensure the country has “an industrial and technological base capable of meeting national defense requirements and capable of contributing to the technological superiority of its national defense equipment in peacetime and in times of national emergency,” is the stuff of which conspiracy theories are made.  Yet there’s no there there.  The EO is simply an update of prior orders on the same subject going back decades to, among other things, account for changes in the cabinet and the like.  if this is a presidential power grab — and I don’t believe it is — the power was grabbed decades ago.  For more, see  Ed Morrissey’s detailed assessment.

Business groups have already begun to take aim at President Obama’s recess appointments. As SCOTUSBlog reports, a coalition of industry groups filed a motion (and supplementary memorandum) to include a challenge to the constitutionality of President Obama’s recess appointments to the National Labor Relations Board in ongoing litigation against recently adopted “notice posting” rule. According to the industry groups, the NLRB lacks the authority to implement and enforce the new rule because it lacks a quorum due to the unconstitutionality of the recent appointments.

For the past week there has been a fair amount of speculation that, because no opinion had yet been posted on its webpage, the Office of Legal Counsel either was not consulted about President Obama’s recess appointment on January 4 of Richard Cordray and three NLRB members, or that it had been consulted and said no recess appointment could lawfully be made while the Senate was conducting pro forma sessions.  

The problem was, as Jonathan Adler noted below, that the White House wouldn’t say publicly whether it had consulted the Justice Department. See here for more. There was understandable concern because of well publicized examples of this Administration obtaining legal opinions from other, less-traditional sources when OLC’s conclusions did not support the action it wished to take.  See here and here for columns by Prof. Bruce Ackerman, here for one by Prof. Michael McConnell, here for a post by Adam White, and here for a post by Ed Whelan.

Well, as I expected, there was indeed an opinion. The Office published it this morning, and it is available here.

Ordinarily, you’d say release of an opinion within a week of relevant executive action is pretty darned fast. After all, OLC opinions sometimes don’t make it on to its website for several months after they’re signed. But given congressional interest and public interest in this matter, this is an instance where simultaneous or near-simultaneous publication (which OLC sometimes manages, see here for an example) might have been helpful. Although Congress and the public does at least have a full explanation of the Administration’s rationale in time to be relevant to the ongoing debate.

More on the opinion later when I’ve had a chance to read it.

UPDATE on contents of the opinion: For starters, in an effort to give its analysis a bipartisan sheen (note the number of Republican Administration OLC opinions it cites), the opinion makes plain what may already have been apparent from my past detailed discussions of the subject, which is that I worked on the OLC’s research into the President’s ability to make recess appointments notwithstanding pro forma sessions back when the Office first considered the subject during the tail end of the Bush Administration. See Op. 4 (citing 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)). The Bush Administration never made such an appointment, however, and the work was never was finalized (and thus, significantly, I wasn’t at liberty to reveal the nonpublic work I’d done).

The OLC opinion was signed January 6, two days after the recess appointments, but the opinion states (Op. 1) that OLC has already advised them about that question, the production of such a detailed opinion on January 6 suggests that the White House Counsel asked the question in advance of the appointments. The opinion formally advises on “whether the President has authority under the Recess Appointments Clause to make recess appointments during the period between January 3 and January 23 notwithstanding the convening of periodic pro forma sessions,” Op. 1 (emphasis added), thus carving out the period when Senator Reid actually did conduct business at the December 23, 2011 session (which was scheduled to be a pro forma session), as noted in my original post.

The opinion, concludes, essentially:

Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.

Op. 1 (quoting Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power–Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921)).

A more detailed recitation of the opinion’s contents after the jump.

Continue reading ‘OLC Opinion on Pro Forma Sessions and Recess Appointments Published’ »

Yale’s Bruce Ackerman, writing in the WSJ, calls for the White House to release the legal memorandum upon which President Obama based his decision to make several recess appointments while the Senate claimed not to be in recess.  As Ackerman notes, the Justice Department’s Office of Legal Counsel “traditionally served as the executive branch’s authoritative spokesman on matters of high legal importance,” but no longer.  On matters from the constitutionality of proposed legislation to the scope of the President’s authority as commander-in-chief, the White House increasingly looks elsewhere when it wants to ensure it gets a desired legal conclusion.  So, here, the President apparently relied upon the White House counsel — who is appointed unilaterally by the President — rather than OLC, which is headed by a Senate-confirmed Assistant Attorney General.  Comments Ackerman:

In challenging the Senate on recess appointments, President Obama has only relied on his White House Counsel, not the Justice Department, in reaching his constitutional conclusions. But so far, the current counsel, Kathryn Ruemmler, has failed to publish the written opinion she presumably prepared to advise the president on his responsibilities. . . .

This is no small difference in a dispute between the president and the Senate on recess appointments. If Mr. Obama had turned to [OLC head Virginia] Seitz as his principal authority, he would have been relying on somebody the Senate itself certified as a suitable official to resolve hotly contested matters of constitutional law. In turning to Ms. Ruemmler, he is asking one of his own appointees to judge whether the Senate can block the appointment of more unilateral appointees.

Within this context, it is hardly enough for him to inform the Senate that Ms. Ruemmler has given the go-ahead. At the very least, he should provide his counsel’s legal opinion explaining why he has the constitutional authority to second-guess the Senate on whether it is in recess.

So far, Ms. Ruemmler has only provided brief media interviews to explain the administration’s “practical, common-sense approach.” On her view, as she explained to NPR, a Senate’s “holiday session” is “just a gimmick” that prevents the president from governing.

Of note, Ackerman finds Ms. Ruemmler’s “casual remarks” wholly insufficient, even though he agrees with her ultimate conclusion that the President’s recess appointments were constitutional. For Ackerman, the issue here is “whether the president has an obligation to make his own constitutional case, or merely announce his judgment by fiat.”

UPDATE: Jack Goldsmith cautions that we should not assume that OLC was not consulted, though he urges.  As he notes, it is rare for a President to bypass or overrule OLC.  He is correct.  The problem is that the White House won’t say whether the Justice Department was consulted and the current administration bypassed OLC on the constitutionality of DC voting rights legislation and overruled OLC on the nature of the military intervention in Libya.  In the latter case, the White House also refused to say whether OLC had been consulted until that information was leaked and reported by the NYT‘s Charlie Savage.  So until the White House is willing to say whether OLC was in the loop, I think skepticism is warranted.  In any event, the Administration should be willing to offer a more complete justification of its position.  Writes Goldsmith:

I can understand why the administration might not want the OLC opinion itself released, especially if (as is probably the case) the opinion notes the closeness of the issue and acknowledges counterarguments, both of which could be used against DOJ in subsequent litigation. But beyond these concerns, which could be addressed by releasing a suitably summarized legal analysis, arguments based on attorney-client and executive privilege ring hollow in this context. The Obama administration’s supposed commitment to DOJ transparency has applied much more to Bush-era legal work than to Obama-era legal work. That looks bad and it is bad. I believe the President has a prerogative to use all of the constitutional tools at his disposal in fighting against a Congress that he believes is unduly intransigent. But especially in an area like this that is hard for courts to review and that raises no issue of classified information, Congress and the American people should be given an opportunity to judge the validity of the President’s legal arguments.

FURTHER UPDATE:  As John Elwood reports, there is an OLC opinion and it has just been posted on the DOJ website.

Today’s WSJ features an op-ed by former federal judge Michael McConnell on President Obama’s decision to grant recess appointments to Richard Cordray to head the Consumer Financial Protection Board and three members of the National Labor Relations Board.

It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess. Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office.

It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. If the filibuster is a problem, the Senate majority has power to eliminate or weaken it, by an amendment to Senate Rule 22. They just need to be aware that the same rules will apply to them if and when they return to minority status and wish to use the filibuster to obstruct Republican appointments and policies.

McConnell notes that Harvard’s Laurence Tribe, who is now defending the recess appointments, “dismissed as ‘absurd’ any suggestion that a period of ‘a fortnight, or a weekend, or overnight’ is a ‘recess’ for purposes of the Recess Appointments Clause.” He also observes that the Administration “has offered no considered legal defense for the recess appointments,” suggesting there was no Office of Legal Counsel memo supporting its claim. Writing in the LA Times, Bruce Ackerman likewise expressed doubts that the Justice Department’s OLC backed the decision:

Normally, presidents rely on the Justice Department to present their case on matters of high constitutional importance. But Obama has refused to take this course, probably because traditionalists in the department refused to endorse his collision course with the Senate. Instead, he used his White House counsel, Kathryn Ruemmler, to serve as his legal mouthpiece.

As Ackerman observed, the Administration adopted the same approach when declaring the military intervention in Libya was not a military conflict. The Administration also circumvented OLC when it decided to back the constitutionality of legislation granting voting rights to the District of Columbia.

Back on the subject of the constitutionality of recess appointments, at the Originalism blog, Michael Rappaport offers a post, “Recess Appointments: The Original Meaning and Its Decline.”

One justification for President Obama’s decision to make several recess appointments this week is that the appointments were necessary to prevent partisan obstruction from disabling federal agencies from performing their duties.  In the case of Richard Cordray, it was clear that Senate Republicans would block his appointment as head of the Consumer Financial Protection Board (CFPB) due to their opposition to how the Board is structured.  A recess appointment was the only way to put Cordray (or anyone else) in place to run the Board.

In the case of the National Relations Board, the President was concerned that the Board would lack a quorum.  As the Supreme Court confirmed in New Process Steel v. NLRB, there must be three NLRB members for the Board to have a quorum, and there were only two Board members remaining after Craig Becker’s recess appointment expired on January 3.  Yet if the NLRB was to lack a quorum it would not have been because Senate Republicans blocked the President’s most recent nominees.

Two of those given recess appointments — Sharon Block and Richard Griffin — were only nominated to the NLRB on December 15, just before the Senate went into its “pro forma” session during which no business was to be conducted. Yet even had the Senate been conducting business over the holidays, neither Block nor Griffin could have been confirmed.  As the Heritage blog reports, the Senate’s Health, Education, and Labor Committee had yet to receive the relevant paperwork and background materials on these two nominees — materials that are typically required, in addition to a background check, for Senate consideration.  (The third nominee to receive a recess appointment to the NLRB was Republican Terry Flynn who had been nominated last January.)

It is certainly possible — perhaps even likely — that Senate Republicans would have opposed confirmation of Block or Griffin, but we’ll never know.  The two were given recess appointments before they could be considered, let alone opposed.  In this regard, the Griffin and Block appointments were something of a preemptive strike.

The recess appointnment claus is an “odd clause” — and perhaps even the “oddest clause of all” in the Constitution, according to BU’s Jay Wexler.  However odd it may be,  it’s receiving lots of attention due to the President’s decision to make four recess appointments even though the Senate maintains it had not formally recessed.

Michael Rappaport makes the originalist case against the President’s recess appointments here.  Likewise, Richard Epstein and John Yoo both argue President Obama’s recess appointments are unconstitutional, as do David Rivkin and Lee Casey. (Note that some of these arguments would have applied to prior recess appointments, including those by President Bush.) At NRO’s Bench Memos, Matthew Franck is unconvinced.  Recall our own John Elwood has also taken the opposite view.  Yale law student Alexander Platt also has a timely student note on the legality of recess appointments,“Preserving the Appointments Safety Valve,” arguing against the use of pro forma sessions to prevent recess appointments from being made.  (Hat tip: Lawrence Solum)

Legal scholars also debated the acceptatbility of recess appointments during the Bush Administration.  Marty Lederman, for example, argued that the recess appointments clause can only be used a) during intersession recesses to fill b) vacancies that occurred during the recess.  The first argument was used (unsucessfully) in an effort to unseat Judge William Pryor who received a recess appointment to the U.S. Court of Appeals for the 11th Circuit.

Whatever the merits of the respective legal arguments — and whether or not they are ever resolved in court — at the Monkey Cage, Sarah Binder observes that Presidents of both parties have made intrasession recess appointments for quite some time, and sees little reason for the practice to stop.  But, as Ezra Klein notes, there are limits to how often this tactic will be used (more here).

While academic commentators seem to have maintained their prior positions, the same cannot be said of political leaders.  As The Hill reports, Senate Majority Leader Harry Reid supports President Obama’s recess appointments even though he previously argued pro-forma sessions were sufficient to prevent such appointments from being made.

UPDATE: Here is some additional commentary from Bruce Ackerman, Lawrence Tribe, and Adam White.

The Consumer Financial Protection Board was not the only beneficiary of a recess appointment today. The AP reports the President also made three recess appointments to the National Labor Relations Board — two Democrats and one Republican. The White House release is here.

It is being reported that President Obama intends to recess appoint Richard Cordray to be the first Director of the Consumer Financial Protection Bureau despite the fact that the Senate has been conducting pro forma sessions for the precise purpose of preventing him from making recess appointments.  Under this procedure, the Senate “gavels in” briefly every three days, calls the house to order, and ordinarily gavels right back out without conducting any business.   The procedure commonly takes less than 30 seconds.  A couple of representative pro forma sessions can be viewed here and here.  The procedure was first used for the purpose of trying to prevent the President from using his recess appointment authority late in President George W. Bush’s second term, and has been used heavily since. 

In October 2010, my former boss at DOJ’s Office of Legal Counsel, Steve Bradbury, and I wrote this op-ed arguing that such pro forma sessions at which no business is conducted do not interrupt a recess of the Senate within the meaning of the Recess Appointments Clause, and thus do not interfere with the President’s recess appointment authority.  I recognize that this is a novel and difficult question of constitutional law, with very few relevant judicial precedents, and there are arguments for both positions. Here is an outline of the basic argument why such pro forma sessions do not interrupt a recess of the Senate.

In addition to the power to make appointments with the advice and consent of the Senate, the President has an auxiliary power under the Recess Appointments Clause “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The few discussions during the ratification debates to broach the subject (during which people argued both for and against such a power) tended to focus on how, absent such a power, the Senate would have to be continually in session to advise the President on the appointment of officers. That was also how Joseph Story framed the issue in his Commentaries on the Constitution: either “the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have the opportunity to act on the subject.”

Both the Senate and the Executive Branch traditionally have given the Recess Appointments Clause a practical construction that focuses on the Senate’s ability to provide advice and consent. The earliest opinion of the Attorney General on the issue (which first took the position, which also has been controversial, that the President can make appointments not only to fill vacancies that arise during the recess, but also which happen to continue to exist during such a recess) focused on the Senate’s ability to provide advice and consent. Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. 631, 633 (1823) (“all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President”).

One of the most important documents on the scope of the Recess Appointments Clause is the report the Senate Judiciary Committee issued on the question in the wake of President Theodore Roosevelt’s decision to make recess appointments during a truly brief gap between two sessions of Congress. That report likewise advocated a practical interpretation that focused on the ability of the Senate to perform the advise and consent function.

It was evidently intended by the framers of the Constitution that [“recess”] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments.

S. Rep. No. 58-4389, at 2 (1905).

The argument is that the sort of pro forma sessions that are now going on don’t give the Senate the opportunity to conduct any business. Indeed, the resolution that preceded this recess specifies that no business will be conducted at these sessions.

Madam President, I ask unanimous consent that when the Senate completes its business today, it adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Tuesday, December 20, at 11 a.m.; Friday, December 23, at 9:30 a.m.; Tuesday, December 27, at 12 p.m.; Friday, December 30, at 11 a.m.; and that the second session of the 112th Congress convene on Tuesday, January 3, at 12 p.m. for a pro forma session only, with no business conducted, and that following the pro forma session the Senate adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Friday, January 6, at 11 a.m.; Tuesday, January 10, at 11 a.m.; Friday, January 13, at 12 p.m.; Tuesday, January 17, at 10:15 a.m.; Friday, January 20, at 2 p.m.; and that the Senate adjourn on Friday, January 20, until 2 p.m. on Monday, January 23; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders be reserved for their use later in the day; further, that following any leader remarks the Senate be in a period of morning business until 4 p.m., with Senators permitted to speak therein for up to 10 minutes each, and that following morning business, the Senate proceed to executive session under the previous order.

Concluding that such pro forma sessions (which by design are not for conducting business) interrupt the recess of the Senate and thus prevent recess appointments would present a risk to separation of powers because it would allow the Senate unilaterally to frustrate the President’s exercise of a power granted him by the Constitution, which the Framers considered to be important to keep the government functioning by filling offices.  Cf. McAlpin v. Dana, No. 82-582, slip op. at 14 (D.D.C. Oct. 5, 1982) (“[T]here is no reason to believe that the President’s recess appointment power is less important than the Senate’s power to subject nominees to the confirmation process.”). 

Congress has its share of legitimate ways to curb the President’s use of recess appointments. For starters, the Pay Act imposes limits on the ability to pay officers who have been recess appointed; the Senate may “punish” the President by moving even slower on nominations; Congress may even reduce or eliminate funding for particular programs or agencies. I suspect that some of that will happen in the wake of this recess appointment. These are the sort of ways that the branches have traditionally wrangled over the use of recess appointments.

A caveat:  Although no business was supposed to be conducted at any of these pro forma sessions, I understand that on December 23, Harry Reid actually did some work at one of them—he asked unanimous consent that the House-passed payroll tax holiday extension be considered read three times and made arrangements for a Conference Committee. But I believe the remainder of the sessions have had no business conducted at them, supporting an argument that the recess was not interrupted during that time.

The decision to make Richard Cordray the first such appointment strikes me as a “high roller” move.  Given the role of the CFPB, it seems likely that Cordray will necessarily take many actions that will give rise to justiciable challenges–i.e., actions that will give people the opportunity to challenge in court the legality of his appointment. Given the importance of historical practice in defining the relationship between the Executive Branch and the Senate in this area, it arguably would have been a safer move to make several recess appointments of officers who would be unlikely to take actions justiciable by private parties, to establish the precedent. But for law nerds like me, the Cordray appointment means there may actually be a court ruling on this interesting (and under-explored) subject.

I expect that OLC will be releasing an opinion explaining the legal rationale supporting the appointment soon. Watch this space for more.

UPDATE: Ordinarily, when Congress goes out for recess, the two houses pass a concurrent resolution.  They have to do that because Article I, Section 5, Clause 4 says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .”  I hear that the House of Representatives didn’t consent to a recess, and in poking around the Congressional Record, I haven’t located any concurrent resolution for this recess.  If you have definitive information one way or the other, let me know by email. 

On December 23, the President signed an omnibus spending bill and issued a signing statement detailing his objections to various provisions and limitations contained in the bill. Here is coverage from The Hill and the NYT. Several of the bill’s provisions “raise constitutional concerns.” Accordingly, the President announced these provisions would be interpreted in a manner that would minimize potential constitutional conflicts and applied ” in a manner consistent with my constitutional authority as Commander in Chief.” Furthermore, the President explained, he would “not treat these provisions as limiting my constitutional authorities in the area of foreign relations.”

On Thursday, U.S. District Court Judge Reggie Walton dismissed Kucinich v. Obama, a suit filed by ten members of Congress alleging that President Obama’s use of military force in Libya was unlawful as it violated the War Powers Act and lacked Congressional authorization.   Judge Walton held the members of Congress lacked standing to bring the challenge, as they had ample legislative means at their disposal to oppose the President’s use of military force.  Judge Walton noted a “long line of cases” that “all but foreclosed the idea that a member of Congress can assert legislative standing to maintain a suit against a member of the Executive Branch,” including a relative recent case involving a suit by Rep. Kucinich against then-President Bush. Judge Walton added in a footnote:

Interestingly, Representative Kucinich, the lead plaintiff in Kucinich v. Bush, the case in which these words were written, is the lead plaintiff in this case in which members of Congress are again attempting to bring an action against Executive Branch officials. Indeed, the plaintiffs “acknowledge the contrary result” reached by the District of Columbia Circuit in a case also involving alleged presidential violations of the War Powers Clause and the War Powers Resolution. See Pls.’ Opp’n at 17. While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law. The Court does not mean to imply that the judiciary should be anything but open and accommodating to all members of society, but is simply expressing its dismay that the plaintiffs are seemingly using the limited resources of this Court to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.

As noted by Politico, Rep. Kucinich’s attorney, GWU law professor Jonathan Turley, objected to Judge Walton’s suggestion this suit should not have been filed.

I must strongly disagree with the Court’s statement in a footnote that, because the D.C. Circuit previously ruled against members in an earlier challenge, no further challenges should be made by members who disagree. If that were the standard, many of our most famous cases in history, like Brown v. Board of Education, would never have happened. Changes in precedent are often secured only after years, if not decades, of challenges. These members strongly disagree with the D.C. Circuit case law and the only way to ask the Circuit to reconsider those holdings is to first receive a decision from the district court.

Of course it is sometimes necessary to raise claims that are squarely foreclosed by precedent in order to prompt the Supreme Court to revisit its own prior decisions. But such a legal strategy only makes sense where intervening precedents and other decisions raise questions about prior decisions or otherwise expose tensions or contradictions in contemporary doctrine. Simply repeating failed legal arguments in the vain hope the judiciary will alter course, as the plaintiffs did here, borders on the frivolous, and creates the impression those filing suit are more interested in publicity and making a political point than in prevailing in court.

Today’s WSJ has an interesting article discussing how Texas Governor Rick Perry has exercised the prerogatives of his office and increased the power of his position during his eleven years in office. Here’s a taste:

By constitutional design that dates to Reconstruction, Texas has a weak governorship. In addition to the legislature, power is diffused among 270 agencies, boards and commissions. Governors makes appointments, but wield limited power over them because members can’t be fired, said Cal Jillson, a political scientist at Southern Methodist University in Dallas. . . .

Mr. Perry’s ability to strengthen his hand is partly due to his longevity. He has served for 11 years, longer than anyone in Texas history and long enough to leave his mark on state commissions. (Texas has no term limits for its governor.) Mr. Perry’s spokesman, Mark Miner, said that to the best of his knowledge, Mr. Perry had appointed every leader and member of the state’s 270 agencies, boards and commissions, which would be unprecedented. . . .

Mr. Perry has also used legislation to consolidate authority. In 2003, he pressed for and won a sweeping overhaul of social services. It streamlined 12 health-and-human-services agencies into five, with power centralized under a commissioner, named by the governor. Agency boards were replaced with advisory councils and stripped of rule-making authority.

Also that year, Mr. Perry moved the economic-development and tourism portfolios from a state agency into the governor’s office to focus efforts on job creation. From there, he created the Texas Enterprise Fund and the Texas Emerging Technology Fund. Allies say the funds helped fuel the state’s jobs growth, while some on both the right and left have called the funds an inappropriate use of taxpayer money.

The article also discusses Gov. Perry’s controversial decision to replace members of the Texas Forensic Science Commission shortly before the panel was set to review evidence suggesting Texas may have executed Cameron Todd Willingham in error. (I covered that controversy here and here.)

Chris Moody attempts to analyze the issue for The Ticket. The analysis could have been improved by reading the laws of the District of Columbia.

Moody describes D.C. as “a city that bans carrying firearms.” That’s not exactly correct. The D.C. Code generally prohibits carrying a firearm “without a license issued pursuant to District of Columbia law.” D.C. Code § 22-4504. It is true that in practice, the D.C. government virtually never issues carry licenses to citizens. However, the Code makes various exceptions to the license requirement, including that “The provisions of § 22-4504 shall not apply . . .to officers or employees of the United States duly authorized to carry a concealed pistol . . .” § 22-4505(a).

Thus President Perry could simply authorize himself to carry a concealed pistol. For good measure, he could likewise authorize the entire White House staff, or indeed every single employee of the United States government, to also carry a concealed pistol in D.C.

As the Moody article points out, President Perry could ask the D.C. police to deputize him, in order to take advantage of the D.C. law allowing the police to carry guns, but President Perry would have no practical need to ask the D.C. police to use their discretion to grant him the ability to do something he can do without their permission anyway.

UCLA’s Adam Winkler suggests that President Perry could issue an Executive Order authorizing him to carry. Executive Orders can apply solely to the Executive Branch of the federal government. An Executive Order could be  one mechanism (although certainly not the only one) by which President Perry could “duly authorize[]” gun carrying by himself or Executive Branch employees. However, if the D.C. Code did not have the exception for federal  employees, then it’s doubtful that an Executive Order could overcome a carrying ban enacted by the D.C. City Council. One might argue that since the entire D.C. city government, with its limited home rule powers granted by Congress, is part of the federal government, the President can by Executive Order negate the operation of a D.C. City Council law. However, as far as I know no President has ever tried to go so far with an Executive Order. And an Executive Order certainly cannot violate a specific congressional statute, including the statute granting partial home rule powers to the D.C. City Council. (The congressional grant of home rule actually excluded criminal law, so D.C. styles its anti-gun laws as “health” laws, and the courts have thus far let D.C. get away with it. However, even if the D.C. gun laws are arguably ultra vires, an Executive Order would not seem to be the appropriate mechanism to deal with them.)

Moody also raises the issue of the Secret Service:

The Secret Service, however, could make a very serious argument that the president shouldn’t be carrying a weapon for his own protection. Remember, a spirited debate broke out in the days leading up to President Obama’s inauguration over whether he would be forced to surrender his Blackberry for security concerns. (In the end, Obama got to keep his Blackberry, but under certain conditions.) If a Blackberry’s almost off limits, you can imagine how the Secret Service might react if the president wanted to pack a Glock.

Well, President Obama’s decision to accept some restrictions on his Blackberry was his choice, presumably made after considering the advice of the Secret Service. The President is in charge of the Secret Service, and not vice versa. The Secret Service cannot “force” him to do anything. They’re not a Praetorian Guard. So when First Lady Eleanor Roosevelt refused to allow the Secret Service to drive for her, or even accompany her, as she traveled around the United States, there was nothing the Secret Service could do about it. The Secret Service did urge her to carry a concealed handgun, and learn how to use it, and she took their advice. After the assassination of President William McKinley, new President Theodore Roosevelt started carrying his own handgun for protection.

As far as we know, there is not a shred of evidence that concealed carry by either Roosevelt had any negative impact on their security. So there’s no reason to imagine that the Secret Service would have a good reason to urge President Perry not to carry a handgun. Unlike a Blackberry, a handgun does not send wireless communications which could be intercepted by foreign spies, nor does it contain a GPS device which can reveal the user’s location.

In this iVoices.org podcast, Rob Natelson explains why unilateral presidential creation of new debt is: 1. Utterly contrary to the Constitution’s structure of limiting executive power. 2. Directly contrary to the text of the 14th Amendment. President Obama, to his credit, declaimed any unilateral power to raise the debt ceiling. But many people–some of whom have taken oaths to uphold the Constitution, or who profess respect for constitutional law–have insisted that the President has unilateral debt power. And since the current deal that is being rushed through Congress may slightly delay the insolvency of the federal government, but not prevent it, understanding what the 14th Amendment says about the issue remains important. Rule of law, not an elective dictatorship.

Former OLC nominee Dawn Johnsen objects to Eric Posner’s suggestion that Harold Koh and John Yoo are “peas in a pod” for their aggressive, politically motivated legal interpretations (albeit peas of differing ideological stripes). In her view, both Yoo and Koh are wrong, but in meaningfully different ways.

Yoo’s infamous memos on torture and other subjects, you’ll recall, made sweeping claims of presidential authority to act contrary to clear federal statutory commands, based on a radical view of the president’s constitutional war powers. This view denies Congress the ultimate authority to prohibit torture, no matter how clearly defined, where the president as commander-in-chief deems it warranted. More, Yoo’s legal claims—and the Bush administration’s executive actions—were kept hidden from the public and ultimately were revealed only through government leaks.

That extreme and secret claim of a sweeping authority to violate statutes simply has nothing in common with the Obama administration’s very public engagement on the meaning of a controversial provision of the War Powers Resolution: its requirement that, after 60 days, the president must terminate military action not specifically authorized by Congress. Since its enactment, interpretation of the “60-day clock” has been the subject of repeated public debate between the executive branch and Congress. Here, Obama is openly joining that debate, but expressly is not challenging Congress’ legislative authority to establish limits on his conduct of war.

President Nixon vetoed the War Powers Resolution because he believed the 60-day clock interfered with the president’s war powers. Congress disagreed and overrode his veto, and a published 1980 OLC opinion (correctly) found the 60-day clock constitutional. The Obama administration asserts that the 1980 memorandum remains in force and that it is not challenging the constitutionality of the War Powers Resolution. By contrast, in one of his memos, Yoo baldly states—without authority or any reference to the contrary 1980 OLC opinion—that neither this nor any other statute “can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.”

One key point for Johnsen are that the Obama Administration’s interpretation of “hostilities” is public, whereas the Bush Administration’s positions were secret. Yet the Obama Administration’s rejection of OLC’s conclusions (to which Johnsen also objects) is public only because of diligent reporting and helpful leaks.

POST-SCRIPT: It seems to me that the Yoo-Koh comparison has the most force is with regard to statutory interpretation, and Johnsen does not address this point. John Yoo provided the administration with a highly questionable but politically desirable interpretation of what constitutes “torture.” Harold Koh provided the administration with a highly questionable but politically desirable interpretation of what constitutes “hostilities.”

So as all of you doubtless already know (and probably discussed over lunch), today the D.C. Circuit in In re: Aiken County rejected as unripe a challenge to the Department of Energy’s decision to withdraw its application to the Nuclear Regulatory Commission for a license to build a permanent nuclear waste repository at Yucca Mountain, Nevada (the site Congress selected).

The Bush Administration (after a long delay) filed the application in June 2008, but in March 2010, the Obama Adminstration’s DOE filed a motion to withdraw the application with prejudice.  The NRC’s Licensing Board denied the motion.  The NRC is now simultaneously considering DOE’s license application and reviewing the Licensing Board’s decision to deny the motion to withdraw. The Court, in an opinion by Judge Sentelle, agreed with the government that there is a lack of finality and thus the petition for review is unripe until the independent Nuclear Regulatory Commission grants the motion to withdraw or rules on the license application.

Back in August 2008, Judge Brett Kavanaugh argued that the removal restrictions for members of the Public Company Accounting Oversight Board were “Humphrey’s Executor squared,”  after the Supreme Court decision, Humphrey’s Executor v. United States, that upheld the constitutionality of removal restrictions on personnel at independent agencies.  His conclusion in that case was vindicated by the Supreme Court.  Today, in a scholarly and lengthy (18 pages, vs. 16 for the majority) concurring opinion in Aiken County, Judge Kavanaugh explored the problems that plain old Humphrey’s Executor to the first power causes for “accountability, liberty, and government effectiveness.”  

He wrote:

This case is a mess because the executive agency (the Department of Energy) and the independent agency (the Nuclear Regulatory Commission) have overlapping statutory responsibilities with respect to the Yucca Mountain project. In particular, both agencies have critical roles in interpreting the relevant statutes and in exercising discretion under those laws. Of importance here, the statutes give the independent Nuclear Regulatory Commission the final word in the Executive Branch on whether the Executive Branch may terminate the Yucca Mountain project.

     * * * *
Reading only the text of Article II, one would assume that the Nuclear Regulatory Commission would report to the President, not the President to the Nuclear Regulatory Commission. If two agencies in the Executive Branch were not on the same page (as may happen in this case if the Nuclear Regulatory Commission rejects the Department of Energy’s withdrawal application), the President presumably would have the authority to resolve that disagreement. If an agency were departing from the President’s preferred course (as the Nuclear Regulatory Commission may do), the President presumably would have the authority to prevent that. And if an agency were taking too long to make a critical legal or policy decision (as appears to be the case with the Nuclear Regulatory Commission), the President presumably would have the authority to fix that as well.

But of course, that “turns out to be inaccurate with respect to independent agencies” such as the NRC because of Humphrey’s Executor.  Kavanaugh argued that “[t]his case is a dramatic illustration of the continuing significance and implications of Humphrey’s Executor”:

If the Commission rejects the President’s policy decision . . . by rejecting the pending application by the Department of Energy (the President’s subordinate) to withdraw the licensing application for Yucca Mountain – then the President may be forced to continue with the Yucca Mountain project simply because the Nuclear Regulatory Commission has told him so.

Reproducing ten lengthy block quotes from the Supreme Court’s opinion in Free Enterprise Fund, Judge Kavanaugh concluded that the opinion’s “wording and reasoning are in tension with Humphrey’s Executor and are more in line with Chief Justice Taft’s majority in Myers [v. United States, 272 U.S. 52 (1926)],” which recognized the President’s authority to remove subordinate officers in the Executive Branch.

The most interesting passage of the opinion for me was when Judge Kavanaugh placed Humphrey’s Executor in historical context, noting that the case was “one in a line of decisions issued in 1935 and 1936 . . . by a Supreme Court seemingly bent on resisting President [Franklin] Roosevelt and his New Deal policies.”  Indeed, the case was decided on the day (May 27, 1935) that “became known as Roosevelt’s ‘Black Monday,’” when the Court announced three decisions relevant to FDR’s programs:  Humphrey’s Executor, Louisville Joint Stock Land Bank v. Radford (invalidating provisions of the Frazier-Lemke Farm Mortgage Act), and Schechter Poultry Corp. v. United States.   Judge Kavanaugh noted that “[t]he other cases in that line have long since been discarded as relics of an overly activist anti-New Deal Supreme Court,” but somehow, Humphrey’s Executor is the one product of the age of the Four Horsemen that “lives on.” 

For more on Black Monday, see here, beginning at page 96.  For more on Judge Kavanaugh and Black Monday, see here.

Glenn Greenwald draws an interesting, if unfavorable, comparison between the actions of lawyers in Department of Justice under President Bush and President Obama.

Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney’s top lawyer, David Addington, agreed the NSA program was legal). In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, and Bush — wanting to avoid that kind of scandal in an election year — agreed to “re-fashion” the program into something those DOJ lawyers could approve (the “re-fashioned” program was the still-illegal NSA program revealed in 2005 by The New York Times; to date, we still do not know what Bush was doing before that that was so illegal as to prompt resignation threats from these right-wing lawyers).

That George Bush would knowingly order an eavesdropping program to continue which his own top lawyers were telling him was illegal was, of course, a major controversy, at least in many progressive circles. Now we have Barack Obama not merely eavesdropping in a way that his own top lawyers are telling him is illegal, but waging war in that manner (though, notably, there is no indication that these Obama lawyers have the situational integrity those Bush lawyers had [and which Archibald Cox, Eliot Richardson and William Ruckelshaus had before them] by threatening to resign if the lawlessness continues).

Greenwald also ponders why the Obama Administration never went to Congress. During the Bush Administration, the White House did not seek Congressional approval of some anti-terror initiatives because some within the Administration — most notably, Dick Cheney — wished to establish the principle that the Executive could act unilaterally to address national security concerns. This approach was unwise, but it is easy to understand. But what is the explanation here? It is hard to see what larger legal principle the Administration is trying to vindicate.

UPDATE: What principle is the Administration vindicating? One possibility, suggested in the comments, is the principle that approval by a multinational entity (the UN, NATO, etc.) should be sufficient to authorize U.S. military action. One data point in support of this theory is the line of division within the Administration: attorneys at Justice and Defense versus Koh at State.

Jack Balkin blogs on the Obama Administration’s decision to overrule OLC at Balkinization.  He compares the Obama Administration’s actions with those of the Bush Administration. The Bush White House undermined OLC’s role by cocooning those who were working on certain questions and short-circuiting intra- and interagency rule. Through this process, the White House got the OLC opinions it wanted on key questions related to the War on Terror. This was only the Bush Administration practice for a short period, however. Beginning with Jack Goldsmith’s tenure, OLC began to assume a more traditional role and, as a consequence, OLC issued some opinions that were definitely contrary to what the White House wanted to hear. In one infamous case, OLC concluded that prior opinions approving the constitutionality of a terrorist surveillance program were in error. Confronted with this information (and the threat of resignations from within the Justice Department), President Bush acquiesced, and the program was altered to conform with OLC’s understanding of the relevant constitutional constraints.

The Obama Administration has not repeated the Bush Administration’s early mistakes with OLC, but it is now clear it is making errors of its own. As John Elwood notes below, this is not the first time this Administration has overruled OLC when the office did not reach a desired conclusion. The Administration bypassed OLC’s determination that Congress could not grant full congressional representation to the District of Columbia absent a constitutional amendment.

Writes Balkin:

Obama’s strategy, like Bush’s, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.

By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC’s function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC’s. If one is disturbed by Bush’s misuse of the process for vetting legal questions, one should be equally disturbed by Obama’s irregular procedures.

Here is how Balkin concludes:

The fact that Obama is a former professor of constitutional law does not justify his scuttling practices that are designed, over long periods of time, to improve legal deliberations and help ensure that presidents conform to the law. Former professors of constitutional law, like current ones, have been known to disagree among themselves about what the law requires; they have even been known to make mistakes and engage in serious misjudgments.

The fact that Obama may think he is smarter and more learned than George W. Bush also does not justify his practice. The next President, or the one after that, may think themselves smarter than Obama. They will certainly find a group of able lawyers somewhere in their Administration to tell them so. Obama came into office promising to reform the abuses of the Bush Administration and its manipulation of the OLC. The best way to do that is not to create entirely new abuses of one’s own.

As Charlie Savage notes twice in the article Jonathan discusses below, the President and the Attorney General have the authority, in the hierarchical Executive Branch, to overrule the advice of OLC.  But as the article also notes, it is “extraordinarily rare” for that to happen.  When Senator Whitehouse asked me after a hearing in 2008 for an example, the only one that came to mind was from the Roosevelt Administration. (There must be others, but I’m still drawing a blank.)  If press accounts are correct, together with the D.C. voting rights bill, we now have two recent examples.

Senator Whitehouse was outraged by even the possibility of the President or the Attorney General overruling OLC, which he characterized as being like former President Nixon’s 1977 quote to David Frost that when the “President does it, that means it is not illegal.” Whitehouse’s full quote from the 2008 hearing [http://www.fas.org/sgp/congress/2008/law.html] is below.

The Department of Justice is bound by the President’s legal determinations. I mean, I thought we’d cleared that when President Nixon told an interviewer that if the President does it it’s not illegal. That stands on the proposition that the President has authority to supervise and control the activity of subordinate officials within the executive branch.

But the idea that the Attorney General of the United States and the Department of Justice don’t tell the President what the law is and count on it, but rather it goes the other way, opens up worlds for enormous mischief.

But of course, the outrage now will come from the other side of the aisle. Cue Orin’s Rule.

The NYT‘s Charlie Savage has confirmed that the President overruled the Department of Justice Office of Legal Counsel’s opinion of what constitutes “hostilities” under the War Powers Resolution, preferring instead the conclusion reached by the White House Counsel’s office and the State Department’s Harold Koh.  In another story earlier this week on the Administration’s explanation to Congress that U.S. participation in NATO operations in Libya do not constitute “hostilities” under the law, Savage reported that White House Counsel Bob Bauer refused to say whether the Administration’s position was based upon an OLC opinion.  Now, however, Savage is able to report that the Administration rejected the legal position of both OLC and that of Defense Department general counsel Jeh C. Johnson.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch. . . .

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In this case, however, [acting OLC head Caroline] Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.

A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.

The story quotes former Clinton OLC head Walter Dellinger saying the Administration’s legal conclusion was “defensible” despite the problematic decision-making process.  Former Bush OLC head Jack Goldsmith, on the other hand, finds the Administration’s position “aggressive” and unpersuasive.

GWU law professor Jonathan Turley has filed suit against the Obama Administration on behalf of several members of Congress, including Reps. Dennis Kucinich (D-OH) and Walter Jones (R-NC).  The complaint alleges that President Obama acted unlawfully by going to war in Libya  without Congressional authorization and seeks, among other things, an order that the military action in Libya constitutes a war that was undertaken without Congressional authorization, as required by the Constitution, and an injunction ”to end the violations alleged above, including but not limited to an order to suspend military operations in Libya absent a declaration of war from Congress.”

It is extremely unlikely this lawsuit will go anywhere.  I would be very surprised were it not dismissed on political questions grounds, and simply flabbergasted were a court to actually order that the U.S. military suspend operations in Libya (or anywhere else, for that matter).  If Congress feels that the President has overstepped his authority, then Congress has to act directly, conducting oversight and (if necessary) cutting off funds for operations it seeks to stop.

I doubt Congress will use the power of the purse, but a milder confrontation over the war power is possible.  Speaker of the House John Boehner recently called upon the Adminsitration to seek Congressional approval of the Libya operations or explain why the War Powers Act is inapplicable.  As Charlie Savage reports in the NYT, the Obama Administration has taken the latter course, telling Congress that this is not the sort of operation covered by the Act.

“We are acting lawfully,” said Harold Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with White House Counsel Robert Bauer.

The two senior administration lawyers contended that American forces have not been in “hostilities” at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes — although unmanned drones operated by the United States periodically fire missiles as well.

They argued that United States forces are at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians.

“We are not saying the president can take the country into war on his own,” Mr. Koh said. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”

The article also contains this interesting tidbit, which raises the possibility that the Justice Department’s Office of Legal Counsel does not wholly agree with the official Administration position. Writes Savage:

While many presidents have challenged the constitutionality of other aspects of the War Powers Resolution — which Congress enacted over President Nixon’s veto — no administration has said that the section imposing the 60-day clock was unconstitutional. In 1980,the Office of Legal Counsel concluded that it was within Congress’s constitutional power to enact such a limit on unauthorized hostilities.

Mr. Bauer and Mr. Koh said the 1980 memorandum remains in force, but that their legal argument does not invoke any constitutional challenge to the act.

It was not clear whether the Office of Legal Counsel has endorsed the White House’s interpretation of what “hostilities” means. Mr. Bauer declined to say whether the office had signed off on the theory, saying he would not discuss inter-agency deliberations.

Another interesting aspect of this conflict is that, in the past Republicans were the ones to be dismissive of the War Powers Act, often claiming it impermissibly interfered with the executive’s commander-in-chief power. Today, however, some seem all too happy to rely upon the Act if they think it can hamstring a Democratic president, just as some Democrats seem to forget the limits on executive authority they championed under Presidents named Reagan or Bush.

This Thursday, I will be taking part in a panel on the legal issues raised by US intervention in the Libya, sponsored by the George Mason University International Law Society. The panel is entitled “Is There Any Law to Hold Us in Libya?” and will be held at George Mason University School of Law at noon. The address is 3301 Fairfax Drive in Arlington, Room 121.

The other panelists will be my law school colleague Jeremy Rabkin, Professor Jeremy Mayer of the GMU School of Public Policy, and Professor Agnieszka Paczynska of the Institute for Conflict Analysis and Resolution.

Perhaps best of all, there will be free food, including pizza.

I previously wrote about the constitutionality of the Libya intervention here, here, and here.

National Review has posted a symposium on the constitutionality of the Libya intervention. The symposium includes a large number of legal scholars and commentators, mostly conservative ones, as one would expect from a conservative publication. Interestingly, most of the participants reject the view (advanced by John Yoo and some others in the George W. Bush administration) that the president has unilateral authority to commit US forces to battle at any time, regardless of the scale of the conflict envisioned. My own contribution to the symposium is here. It largely tracks the position I outlined in greater detail in several VC posts on this issue (see here, here, and here).

My bottom-line view is that, while the president can undertake small-scale military actions on his own, engagements large enough to amount to a “war” require congressional authorization, unless the president is responding to an actual or imminent attack. The fact that we cannot draw an absolutely precise line between the two categories doesn’t mean that the distinction between them is meaningless, any more than our inability to precisely specify the exact minimum height at which a person can be considered “tall” proves that there is no meaningful difference in height between a seven foot tall man and one who is only five feet tall.