You down with OLC?

The Office of Legal Counsel at the Justice Department has released the recess appointment opinion that it produced for President Obama. First off, good for them. Those opinions aren't inherently public, but in a matter such as this, it's definitely to everyone's benefit for the President's cards to be laid on the table.

As most observers (including me) expected, the argument put forth is not that the President can make recess appointments during recesses shorter than three days; instead, they argue that pro forma sessions of Congress are not valid interruptions of intra-session recesses for the purposes of the Constitution's recess appointment clause. Consequently, the recent appointments actually occurred during a 20-day intra-session recess, which they argue is plainly long enough of a recess under the constitution as previously interpreted by federal court rulings.

I highly recommend reading it if you are interested in the current debate. It's a clear and well-written opinion, and not too long (23 pages). Although I disagree with their conclusion regarding the nature of the pro-forma Senate sessions, it's not an implausible argument; this is a vague Constitutional issue with little court guidance, and there is plenty of room for competing interpretations. One thing that I would stress, as I wrote last week, is that OLC opinions on inter-branch constitutional disputes are emphatically not like court rulings written by judges that have the force of law; they are more like briefs written by attorneys for one of the parties to the matter.

In particular, when reading OLC opinions, you should not lend a lot of deference to appeals to precedents from previous OLC opinions, which this opinion has in spades. It doesn't matter how many times and for how many years the executive branch has claimed it has a power under the constitution; it's just a claim. And Senate Legal Counsel could just as easily churn out the opposite opinion ad nauseum, with equally little controlling power. This is not to say that previous claims of power aren't important, they are. But they are simply not authoritative precedents. They are arguments. To its credit, the OLC recognizes this (pg. 4), noting that the question at hand is a novel one, and that there are substantial arguments on both sides that may eventually result in litigation over the appointments.

As a substantive matter, I don't think the President should be deciding whether a gavel-struck session of the Senate is real or not. But my larger concern is that there's no limiting principle articulated. At some point, a future Senate may decide to further up the gamesmanship, say, by leaving the Senate in one massive quorum call every time they break from conducting business, whether it be overnight or for three weeks. What then? I've said it jokingly several times, but maybe it's only a half-joke: if this were a farcical comedy, the end result would be a partisan Supreme Court decision upholding a partisan Supreme Court recess appointment that took place during a quorum call.

I guess my point is that everyone is already playing hardball with recess appointments. The Senate has plainly been playing strategic hardball with the pro forma sessions for the past several Congresses. And now the House is playing hardball by not agreeing to adjourn, and thus forcing the Senate to hold the pro forma sessions. But I think it's a little rich for OLC to be calling out the House and the Senate for coming up with a innovative hardball maneuver, and then declaring it out-of-bounds; everyone has been playing hardball on this for quite some time. Presidents have been using recess appointments strategically for 200 years; there's very little normative need to fill those jobs during a 20 day recess, especially when you consider these offices routinely sit unfilled for weeks during the normal confirmation process. The Cordray nomination was being processed in the Senate for five months. It can't wait another two weeks? Of course it could. But this is hardball, and I don't begrudge the players. But let's not pretend these recess appointments aren't strategic.

So it's not obvious to me that the President upping the hardball ante is going to result in anything except further hardball from Congress at some point down the road. And while that's perfectly legitimate for both sides to do, it can have wide ramifications. As we drift further and further from any defensible normative arrangement of the recess appointment power, the arguments and actions of the political actors will probably tend to become more and more about raw power and raw interests. Again, there's nothing inherently wrong with that, but when the actors seek short term advantage by undermining previous norms, such practices can have negative-sum effects on the institution if universalized. And they can also have spill-over effects to other issues or practices. As I've said, this may be a fight that ultimately brings on reform of the confirmation process that is satisfactory to all parties, but I worry that it may be just another step in the breakdown of the norms in favor of institutional hardball.