Friday, January 6, 2012

Senators Press Administration on Ignoring 90 Years of Legal Advice from Justice Department

WASHINGTON - Senate Judiciary Committee Ranking Member Chuck Grassley is leading Republican members of the Senate Judiciary Committee in questioning the administration's decision to ignore more than 90 years of legal precedent in making four controversial recess appointments while the Senate remained in session.

The members argue that the Justice Department, including the Office of Legal Counsel, has clearly said that a congressional recess must be longer than three days - and perhaps at least as long as ten? in order for a recess appointment to be constitutional.  This position has become the stated position of the executive branch, in cases before the Supreme Court and other legal filings, regarding the required length of time for a recess in order for the President to make a recess appointment.

"The Justice Department and the White House owe it to the American people to provide a clear understanding of the process that transpired and the rationale it used to circumvent the checks and balances promised by the Constitution," Grassley said.  "Overturning 90 years of historical precedent is a major shift in policy that should not be done in a legal opinion made behind closed doors hidden from public scrutiny."

In their letter, the members wrote that they were, "Seeking information about what role, if any, the Department or OLC (Office of Legal Counsel) played in developing, formulating, or advising the White House on the decision to make these recess appointments.  Further, we want to know whether the Department has formally revised or amended past opinions issued by the Department on this matter."

The letter continued to explain that the questions were necessary, "Given the Department's historical position on this issue and the President's unprecedented decision to unilaterally reject the years of Department precedent and Executive Branch practice."

The letter was signed by Senate Judiciary Committee members Grassley, 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.

Here's a copy of the text of the letter.  A signed copy of the letter can be found here.

January 6, 2012

Via Electronic Transmission

The Honorable Eric H. Holder, Jr.

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Dear Attorney General Holder:

On Wednesday, President Obama deviated from over 90 years of precedent established by the Department of Justice (Department), and the Department's Office of Legal Counsel (OLC), by recess appointing four individuals to posts in the Administration, namely Richard Cordray as the director of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board, despite the fact that the Senate has not adjourned under the terms of a concurrent resolution passed by Congress.  This action was allegedly based upon legal advice provided to the President by the Office of White House Counsel.  We write today seeking information about what role, if any, the Department or OLC played in developing, formulating, or advising the White House on the decision to make these recess appointments.  Further, we want to know whether the Department has formally revised or amended past opinions issued by the Department on this matter.

In 1921, Attorney General Daugherty issued an opinion to the President regarding recess appointments and the length of recess required for the President to make an appointment under Article II Section 2 of the U.S. Constitution.  The Attorney General opined that "no one, I venture to say, would for a moment contend that the Senate is not in session when an adjournment [of 2 days] is taken.  Nor do I think an adjournment for 5 or even 10 days can be said to constitute the recess intended by the Constitution."[1] The reasoning of the 1921 opinion was given affirmative recognition in subsequent opinions issued by the Department, including opinions issued in 1960,[2] 1992,[3] and 2001.[4]

The Department has also weighed in on the applicable time period for recess appointments in legal filings in federal courts.  In 1993, the Department filed a brief in the federal district court for the District of Columbia arguing, "If the recess here at issue were of three days or less, a closer question would be presented.  The Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives."[5] Additionally, the Department, via the Office of the Solicitor General, argued in a 2004 brief to the Supreme Court, "To this day, official congressional documents define a 'recess' as 'any period of three or more complete days?excluding Sundays?when either the House of Representatives or the Senate is not in session."[6] This exact argument was also filed by the Solicitor General in another case during 2004.[7] Most recently, the Deputy Solicitor General argued before the Supreme Court in 2010 that "the recess appointment power can work in - in a recess.  I think our office has opined the recess has to be longer than 3 days."[8]

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 ten[9]? in order for a recess appointment to be constitutional.  These various authorities have reached this conclusion for over 90 years and have become the stated position of the Executive Branch, including multiple representations before the Supreme Court, regarding the required length of time for a recess in order for the President to make a recess appointment.

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

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

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

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

(4)   Has the Department formally withdrawn any other prior opinions issued by the Attorney General or OLC regarding the length of time a recess must extend prior to the President making a recess appointment?  If so, which ones were withdrawn or overturned?  Provide the basis for withdrawing or overturning those opinions.

(5)   Given this unprecedented maneuver of recess appointments taking place while the Senate stood in recess for only three days, would it be the Department's position that the President could make a recess appointment during the weekend or when the Senate stands in recess from the evening of one weekday to the morning of the next weekday?

(6)   In 2010, the Deputy Solicitor General argued before the Supreme Court that "recess has to be longer than 3 days" for the President to use the recess appointment power.  Does the Department continue to support this position?  If not, why not?

(7)   In the event that the Department has not withdrawn or overturned any of the prior opinions issued by the Attorney General or OLC, how does the Department reconcile those opinions with the decision of the President to make recess appointments while the Senate remained in Session?  If you believe the positions can be reconciled, provide a legal basis supporting this position.

(8)   Do you believe the President's decision to make these recess appointments notwithstanding the absence of an adjournment resolution is constitutional?  Please explain.

Thank you for your prompt attention to this matter and for responding no later than January 20, 2011.  We look forward to your detailed response.

Sincerely,

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

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

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

4 2001 OLC LEXIS 27.

5 Memorandum of Points and Authorities in Support of Defendants' Opposition to Plaintiff's Motion for Partial Summary Judgment, at 24-26, Mackie v. Clinton, 827 F.Supp.56 (D.D.C. 1993), vacated as moot, 10 F.3d 13, (D.C. Cir. 1993).

6 Brief for the United States in Opposition, Miller v. United States, No. 04-38 (2004) available at http://www.justice.gov/osg/briefs/2004/0responses/2004-0038.resp.pdf (last visited Jan. 5, 2012) (citing

7 See Brief for the United States in Opposition, Evans v. Stephens, No. 04-828 (2004) available at http://www.justice.gov/osg/briefs/2004/0responses/2004-0828.resp.pdf (last visited Jan 5, 2012).

8 New Process Steel v. Nat'l Labor Relations Bd., No. 08-1457 pg. 50 (March 23, 2010), statement of Deputy Solicitor General Neil Katyal available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1457.pdf (last visited Jan. 5, 2012).

9 It is noteworthy to add that according to the Congressional Research Service, prior to President Obama's recent recess appointments, no president in the past 30 years dating back to President Reagan, had made a recess appointment in a shorter recess than 11 days for an intersession recess and 10 days for an intrasession appointment.  See Henry B. Hogue, Congressional Research Service, Recess Appointments: Frequently Asked Questions, pg. 3, Dec. 12, 2011.

DES MOINES, IA (01/06/2012)(readMedia)-- "The Iowa State Education Association (ISEA) remains dedicated to the success of every student. We strongly support education policy with proven methods of success that places students at the center of its goals.

We continue to be frustrated with the lack of real focus and detail of how the Governor's proposal directly impacts student learning in a meaningful way. The ISEA is committed to the ideas we originally discussed: giving teachers the appropriate and important preparation time to improve their craft, continuing with early childhood learning opportunities, and creating additional learning time for struggling students.

We will know more about the Governor's commitment to education once we see his and the Department of Education's budgets. Any plan must give our public schools the tools and resources to help every child succeed and resist the urge to experiment with the latest ideas on the education reform circuit. This issue is too important and the stakes are too high.

The ISEA remains ready to be an integral partner in improving our schools. However, while we appreciate a seat at the table while decisions are made, our presence must not be mistaken for tacit approval of a plan that does not, ultimately benefit Iowa's students."

The ISEA is a professional organization made up of more than 34,000 educators who are dedicated to supporting and protecting a quality public education for all Iowa students. Great Education. It's an Iowa Basic!

Decision Issued on Iowa's Water Quality Standards

(Kansas City, Kan., Jan. 6, 2012) - EPA has approved the Iowa Department of Natural Resources' (IDNR) designated use changes for 430 water bodies and disapproved proposed changes for 89 water bodies.  Designated uses describe the achievable recreational activities and aquatic life uses for Iowa's waters.

"Healthy watersheds provide Iowa communities with safe drinking water, recreational opportunities, environmental benefits and clean water for habitat for fish and wildlife," said Karl Brooks, regional administrator. "EPA will continue working with the state to protect Iowa's lakes, rivers and streams."

IDNR submitted these new and revised Iowa surface water quality standards to EPA for review and approval, as required by the Clean Water Act (CWA).  The state based its recommendations on site-specific field data gathered by IDNR in and near streams, lakes and rivers. This submission updates the use designations to determine the highest attainable use for the individual waters.

Designated recreational uses protect for activities such as swimming, fishing and canoeing; and for human consumption of aquatic life.  Aquatic life uses provide for the protection and maintenance of a healthy environment for fish and other animals.

The CWA assigns EPA the duty to oversee state-agency actions to protect water quality. In partnership with IDNR, EPA works with the public, community leaders, local and state agencies to meet the growing needs and demands of our water resources.

EPA's Jan. 5, 2012, decision letter provides a more detailed description of EPA's review and the basis for this action.  The decision letter is available at http://www.epa.gov/region07/news_events/legal/index.htm

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For more information about activities in EPA Region 7, visit

www.epa.gov/region07/water/

Connect with EPA Region 7 on Facebook:

www.facebook.com/eparegion7

The Des Moines Metro Opera Company,

Iowa's Premier Opera Company performing

by Wolfgang Amadeus Mozart

Mozart's delightful commentary on love, forgiveness, tolerance and the brotherhood of mankind has become one of the most beloved operas in all the repertory. Filled with star-studded queens, dragons, bird-catchers, heroes and heroines and noble priests, The Magic Flute is a spectacular potpourri of worldly and heavenly delights all set with sublime enchantment to some of Mozart's greatest music! It is the perfect opera to delight and dazzle audiences of all ages.

Tuesday, February 7, 2012 - 7:00 p.m.

Rogalski Center, St. Ambrose University

Premium Seating $25 (limited to 60)   General Admission $15

Sorry...no GAHC discount

Tickets in person at GAHC, by mail or phone order

(563) 322-8844 or contact kelly.lao@gahc.org

This performance is supported in part by the
Riverboat Development Authority