Friday, January 13, 2012
I normally defend the Senate's prerogatives, but I've been persuaded by the legal brief on recess appointments released yesterday by the Justice Department's Office of Legal Counsel. The OLC memo bases a key part of its analysis on the fact that the Senate's unanimous consent agreements for pro forma sessions since 2007 have almost always included the phrase "no business will be conducted." That allows the lawyers to conclude that the Senate wasn't really open to receive nominations. I'm also persuaded that when nominations are blocked in a way to make execution of the laws impossible -- as in the cases that prompted the recent appointments -- the President's Constitutional interests have to be balanced against the Senate's. This is a narrow case. The Senate could still play games to block recess appointments, but it can't be a easy as previously. I also agree with Kevin Drum's assessment of this issue.