The DOJ's office of Legal Counsel has released its opinion backing President Obama's move to make "recess" appointments despite the pro formas sessions the Senate has held -- an opening prayer and gavel, but no work -- which have traditionally been used to avoid presidential recess appointments. One Republican senator immediately countered that with the assertion that it was an end-run around the Consitutional separation of powers.
"The convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a 'Recess of the Senate' under the Recess Appointments Clause," said DOJ in a statement. "In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments."
The President argued that the Senate was just trying to obstruct nominations, and proceeded to make a handful of appointments, though not the two FCC commissioners who failed to get full-Senate votes after breezing through Senate Commerce Committee vetting on a bipartisan basis.
Sen. Charles Grassley, who has threatened to put a hold on the vote on FCC nominees Ajit Pai and Jessica Rosenworcel, was not pleased with the DOJ opinion, accusing President Obama of a "blatant attempt to circumvent the Senate and the Constitution." Grassley, ranking member of the Senate Judiciary Committee, has questioned Justice's role in the White House position on the appointments.
"The Justice Department opinion is unconvincing. Its conclusion is at odds with the text of the Constitution and the administration's own previous statements," said Grassley in a statement. "It fundamentally alters the careful separation of powers between the executive and legislative branches that the framers crafted in the Constitution. It relies on no Supreme Court decision and many conclusions are unsupported in law or the Constitution. It recognizes that the courts might well disagree. And it flies in the face of more than 90 years of historical practice. Taken together with a laundry list of other assertions of the power to act without Congress, this is clearly an escalation in a pattern of contempt for the elected representatives of the American people."