Ackerman: Release the Recess Appointment Opinion

(Jonathan H. Adler)

Yale's Bruce Ackerman, writing in the WSJ, calls for the White House to release the legal memorandum upon which President Obama based his decision to make several recess appointments while the Senate claimed not to be in recess.  As Ackerman notes, the Justice Department's Office of Legal Counsel "traditionally served as the executive branch's authoritative spokesman on matters of high legal importance," but no longer.  On matters from the constitutionality of proposed legislation to the scope of the President's authority as commander-in-chief, the White House increasingly looks elsewhere when it wants to ensure it gets a desired legal conclusion.  So, here, the President apparently relied upon the White House counsel — who is appointed unilaterally by the President — rather than OLC, which is headed by a Senate-confirmed Assistant Attorney General.  Comments Ackerman:

In challenging the Senate on recess appointments, President Obama has only relied on his White House Counsel, not the Justice Department, in reaching his constitutional conclusions. But so far, the current counsel, Kathryn Ruemmler, has failed to publish the written opinion she presumably prepared to advise the president on his responsibilities. . . .

This is no small difference in a dispute between the president and the Senate on recess appointments. If Mr. Obama had turned to [OLC head Virginia] Seitz as his principal authority, he would have been relying on somebody the Senate itself certified as a suitable official to resolve hotly contested matters of constitutional law. In turning to Ms. Ruemmler, he is asking one of his own appointees to judge whether the Senate can block the appointment of more unilateral appointees.

Within this context, it is hardly enough for him to inform the Senate that Ms. Ruemmler has given the go-ahead. At the very least, he should provide his counsel's legal opinion explaining why he has the constitutional authority to second-guess the Senate on whether it is in recess.

So far, Ms. Ruemmler has only provided brief media interviews to explain the administration's "practical, common-sense approach." On her view, as she explained to NPR, a Senate's "holiday session" is "just a gimmick" that prevents the president from governing.

Of note, Ackerman finds Ms. Ruemmler's "casual remarks" wholly insufficient, even though he agrees with her ultimate conclusion that the President's recess appointments were constitutional. For Ackerman, the issue here is "whether the president has an obligation to make his own constitutional case, or merely announce his judgment by fiat."