All eight Republicans on the Senate Judiciary Committee sent a letter asking Attorney General Eric Holder about any role the Justice Department may have had in President Barack Obama’s decision to make four high-profile recess appointments this week.
The Republican senators, led by Charles Grassley of Iowa, said Obama’s decision to name a consumer financial watchdog and three National Labor Relations Board members departs from past views of some Justice Department officials that recess appointments probably can’t be made if Congress takes a brief break that lasts only for a few days.
The senators asked whether the Justice Department offered legal advice to the president before he bypassed the Senate and made the appointments this week.
“This action was allegedly based upon legal advice provided to the president by the Office of White House Counsel,” the eight wrote to Holder. The senators said they want to know what role the Justice Department played “in developing, formulating or advising the White House on the decision to make these recess appointments.”
They also asked whether the Justice Department has formally changed its views on recesses.
Year of Delays
In the House, other Republicans were also seeking information. Two lawmakers sent letters today to the NLRB and the White House counsel’s office seeking documents about the new labor board members’ qualifications and the president’s authority to appoint them. The letters were signed by Representative John Kline of Minnesota, chairman of the Education and Workforce Committee, and Representative Phil Roe of Tennessee, chairman of the Subcommittee on Health, Employment, Labor and Pensions.
Obama on Jan. 4 installed Richard Cordray as head of the Consumer Financial Protection Bureau and appointed three members to the NLRB: Sharon Block, Terence Flynn and Richard Griffin. Cordray’s placement followed a year of delays by Senate Republicans, who said they opposed him because they believe the bureau’s powers are too broad.
Obama’s action was supported by Democratic leaders in the House and Senate and drew sharp rebukes from House Speaker John Boehner of Ohio and Senate Minority Leader Mitch McConnell of Kentucky, both Republicans.
The Constitution gives presidents the power to make appointments when the Senate is in recess. Republicans won bipartisan agreement to keep Congress in pro forma sessions every three days through the holidays to keep Obama from making recess appointments.
For more than two decades, lawmakers have used the practice of holding such sessions every three days, with the view that it would avoid a recess when appointments could be made.
Tracy Schmaler, a Justice Department spokeswoman, declined to respond to the letter, instead referring to earlier comments by White House officials defending the legality of the appointments.
In the letter, the Republican senators said that in 1921 the attorney general issued an opinion to the president saying it would be unlikely anyone would view the Senate as being out of session under the Constitution if it adjourned for two days, or perhaps as many as 10.
In a 1993 case involving the Postal Service Board of Governors, Justice Department lawyers argued that presidents can make recess appointments when the Senate is out of session for more than three days. The court papers suggested that a president might lack that authority during shorter breaks.
“Taken together, these authorities by the Department clearly indicate the view that a congressional recess must be longer than three days -- and perhaps at least as long as 10 -- in order for a recess appointment to be constitutional,” they wrote.
In addition to Grassley, senators signing the letter to Holder were Orrin Hatch of Utah, Jon Kyl of Arizona, Jeff Sessions of Alabama, Lindsey Graham of South Carolina, John Cornyn of Texas, Mike Lee of Utah and Tom Coburn of Oklahoma.
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