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.

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.

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.

Still here?  

The opinion notes (Op. 2-3) that the pro forma sessions appear to be forced in this case by the House of Representatives’ failure to consent to allow the Senate to recess, thus requiring pro forma sessions to satisfy the requirement of Article I, Section 5, that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .”  The opinion observes (Op. 3) that public statements of the Members of the Senate suggest they do not consider the pro forma sessions to interrupt the recess of the Senate (because they refer to the total duration of the break rather than a series of 3-day breaks), as does the Senate’s webpage, and—perhaps most significantly of all—the body takes steps to provide for appointment of congressional personnel, which it usually only does during longer recesses, “indicating that the Senate recognizes that it is not in session during this period for the purpose of making appointments under ordinary procedures.”  Op. 3.    

The opinion first discusses (Op. 5-8) the lawfulness of an appointment if the recess were a 21-day recess, which is pretty straightforward given the number of recess appointment presidents traditionally have made during far shorter recesses than that.   The opinion then briefly discusses (Op. 9-13) the historic understanding of the Recess Appointments Clause and the political branches’ treatment of it. 

Then comes the meat of the opinion (Op. 13-18), concluding based on three considerations that “the President may determine that pro forma session at which no business is to be conducted do not interrupt a Senate recess for purposes of the Recess Appointments Clause.”  The three considerations are (1) “the Framers’ original understanding of the Recess Appointments Clause and the longstanding views of the Executive and Legislative Branches” (Op. 13-15); (2) “allowing the Senate to prevent the President from exercising his authority under the Recess Appointments Clause by holding pro forma session would be inconsistent with both the purpose of the Clause and historical practice in analogous situations” (Op. 15); and (3) “permitting the Senate to prevent the President from making recess appointments through pro forma sessions would raise constitutional separation of powers concerns” (Op. 16-18). 

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 issue.

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.

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.”

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.

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.

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. 

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.

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.)

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.

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.”

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.

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.

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.

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.

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.

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.

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.

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.

I previously defended the president’s decision here.

As I mentioned in the earlier post, this is not the first time that an administration has refused to defend a federal law on such grounds.
NPR recently published a helpful summary of similar decisions by previous administrations, including various Republican ones:

While the administration’s DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.

During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote.

The fact that Republican administrations have done the same thing in the past doesn’t necessarily prove that Obama’s decision was justified. After all, as Obama himself would be quick to agree, Republican administrations make plenty of mistakes too.

The history does, however, support my point that presidential refusal to defend the constitutional of a statute doesn’t automatically lead to its defeat in Court. As NPR notes, the courts ended up upholding the challenged law in many of the cases where an administration chose not to defend it. More importantly, in all these cases the law was effectively defended by other parties, even if it was ultimately struck down.

I’m not a fan of either the Obama Administration or some of the legal arguments they have made in support of the claim that DOMA is unconstitutional. But I do think that they made the right call here. If a President genuinely believes that a federal statute is unconstitutional he has a duty not to defend it.

I. The President’s Duty to Defend the Constitution Supersedes His Duty to Uphold Federal Statutes When the Two Conflict.

Let’s start with first principles. The president takes an oath to “preserve, protect, and defend” the Constitution. His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. After all, federal statutes are only legitimate in so far as they are constitutional. One of the greatest threats to the Constitution is the enactment and enforcement of unconstitutional laws that exceed the powers of government.

Ever since George Washington, presidents have exercised their own judgment in assessing the constitutionality of federal laws, and have not simply deferred to the courts or to Congress. Each branch of government has an independent responsibility to assess the constitutionality of current and proposed laws. This is not incompatible with the duty of the president or Congress to obey judicial decisions that strike down a statute, since the Constitution gives the courts jurisdiction over all cases arising under it. But if the courts haven’t yet ruled on the issue, nothing prevents the president or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.

Thus, if the president genuinely believes that DOMA or any other federal statute is unconstitutional, he has at least a prima facie duty not to defend it in court, and possibly a duty not to take actions to enforce it either, as part of his exercise of prosecutorial discretion (a traditional executive power). Obviously, the president can still choose to defer to Congress or the courts in ambiguous cases where he is not sure whether a statute is constitutional or not. It would have been perfectly legitimate for the Obama Administration to conclude that they are not sure whether DOMA is constitutional, and therefore will defer to the considered judgment of Congress until such time as the Supreme Court definitively decides the issue. But the President apparently has a considered view that the statute really is unconstitutional, and not merely uncertain in its status. If so, his duty to the Constitution requires him take the action that he did.

II. Practical Considerations.

Many of the critics of Obama’s decision cite the danger that allowing presidents to refuse to defend statutes they consider unconstitutional would allow them to negate any laws the administration happens to disagree with, simply by not arguing for them in court. This is a reasonable concern. But I think it is overblown.

The fact that the administration chooses not to defend a federal law doesn’t mean that it won’t have other able defenders. In practice, virtually any significant federal law is likely to be supported by states and/or private parties who have standing to intervene. For example, any of the 45 states that today forbid gay marriage would probably have standing to defend its constitutionality on the grounds that otherwise they might have to extend tax credits and other government benefits to resident couples who have entered into same-sex marriages in other states. If a future Republican administration chooses not to defend the constitutionality of the individual mandate, both state governments who support it and various private parties who benefit from it materially would have standing to intervene. For example, insurance companies support the mandate because it requires people to buy their products and that financial stake in the law is surely sufficient to give them standing.

Indeed, supporters of a challenged law should prefer that its defense be handled by a party that is genuinely committed to it, rather than a hostile Justice Department that is only litigating the case because they believe they can’t get out of it. Ed Whelan, a prominent critic of the Obama Administration’s handling of the DOMA litigation, claims that the “administration has been sabotaging DOMA litigation from the outset” by refusing to make the best possible arguments in the law’s defense. If so, wouldn’t DOMA supporters be better off if the statute’s defense were handled by parties who actually believe in their case and genuinely want to win it?

Past experience supports the conjecture that a president’s unwillingness to defend a federal statute doesn’t necessarily doom it to defeat. This is not the first time that a president refused to defend the constitutionality of a federal law or regulation. In 1989, as Jim Copland points out, the George H.W. Bush administration refused to defend the constitutionality of federal affirmative preferences in the Metro Broadcasting case. In the 1982 Bob Jones case, the Reagan administration refused to defend an IRS policy denying tax exemptions to a university that practiced racial segregation for religious reasons. Significantly, both policies were ultimately upheld by the Supreme Court, as other extremely able lawyers were found to defend them. For example, the Bob Jones case was won by prominent Washington, DC lawyer William Coleman.

In recent years, federal courts have gradually relaxed standing rules, making it easier for a variety of parties – especially state governments – to bring lawsuits or intervene in existing ones. Thus, it is highly unlikely that a president’s refusal to defend a statute in court will mean that it won’t find able defenders elsewhere. If there is still a problem, the proper solution is to further loosen restrictive standing requirements, which should be eliminated anyway for reasons I explained here.

UPDATE: I should add that it might also be legitimate for the president to adopt a general policy of deferring to congressional judgment on issues relating to the constitutionality of federal statutes, if he believes that Congress’ judgment on these matters is likely to be systematically superior to that of the executive branch. But I think any such presumption is at best dubious in an era when Congress generally enacts whatever statutes it wants with little or no serious consideration of constitutional constraints on its power.

UPDATE #2: I have changed around some of the wording in this post for the sake of clarity.

UPDATE #3: It may be that it will be harder for states to get standing to defend DOMA than I suggest above, because the President is only declining to defend the constitutionality of Section 3 (forbidding federal government recognition of same sex marriages contracted in the states), while continuing to argue the provisions in DOMA that allow states to refuse to recognize same-sex marriages contracted elsewhere. Nonetheless, I think states can get standing. Some state tax benefits depend on federal law recognition of marriage, as also does some federal funding of state government programs. Given that even a small fiscal effect is enough to get standing under current precedent, the states will likely be able to find something – as might various private parties opposed to same-sex marriage.

Orin has explained below why this assertion of executive power may be troubling, but I suspect that I am significantly less troubled than he is.

But I have a different bone to pick with the administration. According to news reports, while Justice will not defend DOMA in Court, the Administration will continue to enforce DOMA until it’s declared unconstitutional by the judiciary.

Wait a second! If the Executive Branch is asserting the authority to engage in independent constitutional review of an existing law, and the president decides that the law is unconstitutional, it strikes me that the Executive Branch has no business enforcing this unconstitutional law.

So I take the Obama Administration to task not for asserting executive review here, which is at least arguably proper, but for trying to split the baby in half, and declaring that it won’t defend an unconstitutional law, but will enforce it. And not just any unconstitutional law, but one regarding which the Administration claims there are no “reasonable” supporting arguments.

According to the article, Justice Department spokesperson Tracy Schmaler said Tribe is bound by a law that bans former senior officials from seeking to influence their former employer “in connection with any matter on which such persons seeks official action by any officer or employee of such department.” According to the article, Tribe’s co-counsel stated that “Tribe ‘had been led to believe’ that he could be listed as counsel of record after discussing the issue with ethics experts in the department.” He said that the intent of the brief is to influence the court, not the Justice Department (which represents respondent the Tennessee Valley Authority).

Cocounsel, who in Tribe’s absence has been elevated to “counsel of record,” reports that her client is upset because they “hired Tribe because of his ‘sterling reputation’ as the ‘best constitutional scholar in the country.’” (Don’t worry–in the age of the Internet, everyone at the Court will know whose brief it is.)  Tribe is still working behind the scenes and the brief is substantively identical; his name just isn’t on it.

It looks to me like the post-employment restriction in question is 18 U.S.C. § 207(c), which prohibits former senior officials of the Executive Branch, within a year of their departure, from “knowingly mak[ing], with the intent to influence, any communication to or appearance before any officer or employee of [his former] department or agency . . . , on behalf of any other person . . . in connection with any matter on which such person seeks official action by any officer or employee of such department or agency.” (For purposes of the statute, DOJ is considered several agencies, so people from the various divisions like ENRD and Crim and Civil frequently can file briefs involving other divisions.  But folks like Tribe who were in the Big Cheese “Senior Management Offices” are all from the same “agency,” along with the Office of the Solicitor General.)

Tribe has a point: his main purpose is no doubt to influence the Court, not the government, and by the time Tribe’s client filed its brief, the government had filed its opening brief already–favoring the same side his client did.  But the government (since it is supporting the petitioner) will get a reply brief, and will probably get argument time, and so the brief might be seen as influencing the position the government takes with respect to those.    

Because of concerns like these, former government lawyers (including me) routinely leave their names off briefs in which the government is participating during their first year of separation.  It would be a tough criminal case to make given the “intent to influence” and “on which such person seeks official action” language.  But section 207(c) is, it bears repeating, a criminal prohibition, and having your name on yet another brief is not worth even the tiny risk of prosecution.  For that reason, every ethics lawyer I know of in DOJ advises former employees to steer well clear of anything that might be seen as such a communication with the Agency.   They may acknowledge the counter-arguments if pressed, and that may be what Tribe did.  But they’re a cautious lot, and generally won’t give you the thumbs up unless everything is glatt.

The most interesting fact to me is that the government apparently acted to have his name striken from the brief.  Clearly, by that point, DOJ knew of the the brief and his role in it, so it would seem that any violation would have occurred.   Taking his name off the brief at that point wouldn’t seem to make it any more or less of a violation, unless the person who spotted it wasn’t in the Senior Management Offices and thus wasn’t in the same “agency.”  I wonder if someone at DOJ got wind of the filing and urged Tribe to file a substitute brief promptly before it was distributed at OSG.   In any event, very interesting.

Here are the briefs.  As they say in Philly, wit  and wit-out.

UPDATE (2/14/11, 11:58 am): DOJ has issued a statement about this kerfuffle, which doesn’t actually add much.  It’s reproduced in full after the jump.

Quoth Justice Department spokesperson Tracy Schmaler:

When the Justice Department was contacted regarding Professor Tribe’s participation in this case, he was advised that the post-employment statute barred him from being included as counsel of record in this matter, one in which the Department represents a party. This statutory restriction does not bar behind the scenes advice to a client. 18 U.S.C. 207(c)(1), which imposes a one-year prohibition on communications by former senior Executive Branch officials to their former department when those communications are knowingly made with the intent to influence the department ‘in connection with any matter on which such persons seeks official action by any officer or employee of such department.’”

Instead, President Obama issued a much milder statement that criticized the restrictions on policy grounds, stating that the restrictions “undermine[] our Nation’s counterterrorism efforts and ha[ve] the potential to harm our national security.” He also announced that “my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.”

The Washington Post praised the President for “appropriate restraint in refusing to use the signing statement in th[e] way” most of his recent predecessors did, but said he showed “too much restraint in opposing the provisions” during the legislative process and for not vetoing them (although they were part of an important defense authorization bill). Well, whatever you think of the President’s actions, it’s clear he didn’t use the signing statement of this bill to pick a fight with the new Republican majority in the House.

In keeping with tradition, the nomination does not specify that Seitz would be AAG for the Office of Legal Counsel. If I remember correctly, that is because the legislation creating most of the Justice Department’s AAG spots doesn’t specify that they’ll head a particular office. As a technical matter, this might permit the Attorney General to reassign one AAG to head another DOJ component (so long as the legislation creating that AAG spot is similarly general). Thus (for example), the AG could switch the confirmed AAG for the Criminal Division and the confirmed AAG for OLC without renominating either of them. But that strikes me as extraordinarily unlikely to happen nowadays, since it would make the relevant Senate committees so unhappy.

UPDATE:  Thanks to a reader who was ready with the authorities, here is confirmation of my recollection that AAGs can be moved around.  Ted Olson, when he was head of OLC, signed an opinion concluding that “the Attorney General may reassign Assistant Attorneys General . . . from one unit to another without resubmitting their names to Congress.”  Historical Use of Assistant Attorneys General, 7 Op. O.L.C. 165, 165 (Oct. 27, 1983).  The opinion said that the Office had “identified at least ten occasions on which an Attorney General ha[d] made such transfers,” including Robert Jackson (Tax to Antitrust), Tom Clark (Antitrust to Criminal Division), and David Bazelon (Lands, now ENRD, to Office of Alien Property).  Id. at 165-66.  This reading seems to be confirmed by 28  U.S.C. § 507A(a), added, in 2006, which provides that “[o]f the [eleven] Assistant Attorneys General appointed under 28 [ U.S.C. §] 506, one shall serve, upon the designation of the President, as the Assistant Attorney General for National Security.”

But the following statement in the story caught my eye:

Early in his presidency, [President Obama] issued several signing statements that made relatively uncontroversial challenges. But he has not issued any since June 2009, when lawmakers of both parties expressed outrage over a statement he attached to a bill saying that he could disregard requirements imposed on certain negotiations with international financial institutions.

The online edition of the story included a hyperlink to a January 2010 article reporting that the Administration had adopted a new policy and that henceforth, the President would not issue signing statements “repeating claims of executive power that the White House has previously voiced.”  I discussed that story here.

For the record, the President has issued constitutional signing statements since June 2009. He issued a couple just this fall, this one about the Intelligence Authorization Act for FY10 (which I discussed here) and this one about the Coast Guard Authorization Act, of all things.  (The text of the most recent signing statement, which I haven’t blogged previously, is reproduced after the jump.)

The President’s recent constitutional signing statements are very similar to ones issued by both Presidents Clinton and George W. Bush, although he’s issued many fewer than either.  Although the Intelligence Authorization Act signing statement touches on a theme that that President Obama has addressed in previous signing statements (limits on Congress’s ability to require the Executive Branch to turn information over to it), in most respects, both address concerns that he personally has not voiced in previous signing statements.  Thus, they appear consistent with the policy reported in January 2010.  But it’s simply not the case that the President hasn’t issued any signing statements since June 2009.

UPDATE:  The Times is now reporting that the President’s aides are leaning against a signing statement. As I indicated, I think the link may have helped them lean in that direction, which I suspect was the motivation for it.
 
Another interesting development is that the ACLU has written a letter to the President “urg[ing]” him “to direct all federal agencies with instructions that the restrictions [on transfer of Guantanamo detainees] do not materially restrict the ability of DOJ, DHS, or the State Department to effect transfers from Guantanamo to the United States or to foreign countries,” because the funding restrictions literally only apply to the use of Department of Defense funds. The president could do so, of course, through a signing statement. The ACLU has a point, but this illustrates a corollary to Kerr’s Rule, which is that people’s enthusiasm for relying on technical legal distinctions is directly proportional to whether it achieves a policy goal they favor. I can’t imagine they’d embrace the distinction if Congress had in 2007 prohibited DoD from using its appropriated funds to engage in “enhanced interrogation,” for example.

The President’s most recent constitutional signing statement reads, in relevant part:

Section 818 of the Act requires the Comptroller General to determine whether it is feasible to deliver securely a transportation security card to an approved applicant’s place of residence. If such a determination is made, the Secretary of Homeland Security (Secretary) would be required to implement a process that allows for such delivery. This provision would impermissibly vest authority in the Comptroller General, a congressional officer, to bind the Secretary in the performance of an Executive function. Therefore, the Secretary will need to treat the Comptroller General’s findings as advisory and nonbinding.

Finally, certain provisions in section 401 may vest significant authority in the Coast Guard Chief Acquisition Officer, who is not appointed in conformity with the Appointments Clause of the Constitution. The Executive will therefore need to construe these provisions as requiring approval of any exercise of significant authority by a supervisor who is an officer of the United States.

For a President who aspires to be a transformational leader in the mold of Ronald Reagan, it is surely a frustrating situation.  How can he continue to advance an ambitious policy agenda in the face of congressional opposition?

Obama is the third President in a row whose party lost control of Congress.  The prior two administrations thus provide a roadmap for a possible way forward.  As former presidential adviser Dick Morris recalled, “[a]fter he lost Congress in 1992, Bill Clinton . . . resorted to executive orders to maintain his momentum as president.  With Congress unwilling to pass anything he proposed, the president canvassed the administration for ideas that could be implemented by executive orders.”  President George W. Bush followed a similar course, although his administration also considered advancing his agenda by using regulations promulgated by executive agencies.  Call it “frustregulation”—when Congress is no longer in friendly hands, Presidents turn to those levers of power still available to them. 

President Obama’s staff undoubtedly began compiling ideas for similar efforts immediately after November 2, if not before.  Indeed, as Charles Krauthammer has noted, the Administration has already made use of regulations to implement initiatives that failed in the Democratic Congress.  The Department of Health and Human Services recently issued a final rule providing Medicare coverage for “voluntary advance care planning” during routine physicals, which is explicitly “based on the definition of ‘end-of-life planning’” (see p. 73406, column 3, of this final rule) and owes much to a provision of the President’s health care reform bill omitted from the final package after it touched off a political firestorm over “death panels.” And although the President’s favored environmental legislation failed, as Jonathan Adler noted, in late December, the Administration announced plans to set greenhouse gas emission limits on refineries and fossil-fuel power plants. So we may expect to see more in this vein as the legislative picture worsens for the Administration.

As a fairly recent alumnus of the Executive Branch, my purpose here is simply to note the phenomenon as we count down to the opening gavel of the 112th Congress, not to condemn it.  But this is becoming a regular feature of modern political life as the houses of Congress continue to change hands.