Workforce Fairness Institute

Justice Department Contradicts Itself On Recess Appointments

Washington, D.C. (January 12, 2012)  –The Workforce Fairness Institute (WFI) today released the following statement in response to the Department of Justice’s (DoJ) Office of Legal Counsel releasing an opinion backing the legality of President Obama’s  recess appointments in spite of the fact that very same office previously disputed the finding as did Obama’s solicitor general office:

“The lengths President Obama will go to payback Big Labor appear limitless.  First, he recess appoints Richard Griffin and Sharon Block to the National Labor Relations Board without giving the Senate any time whatsoever to conduct its Constitutional responsibility to advise and consent, and next, his Justice Department issues a legal opinion which disputes previous findings from that very same office,” said Fred Wszolek, spokesperson for the Workforce Fairness Institute (WFI).  “And to make matters worse for the White House, its own deputy solicitor general argued before the  U.S. Supreme Court against the legality of the kind of recess appointments made by this president.  President Obama has lost all credibility on the issue of nominations and recess appointments and his handling of this issue has demonstrated beyond any reasonable doubt that he is more concerned with carrying the water of union bosses than adhering to the Constitution and turning around the economy.”     

BACKGROUND:

“Justice Department Backs Legality Of Obama Appointments”:

“President Barack Obama was within his constitutional authority to make recess appointments to two agencies even though the U.S. Senate was holding periodic pro forma sessions, Justice Department lawyers said in a legal opinion released on Thursday. The department's Office of Legal Counsel said that the only way the Senate could block such appointments is by 'remaining continuously in session' rather than the pro forma sessions 'at which no business is to be conducted.' Obama last week used his constitutional power to install a new chief at the Consumer Financial Protection Bureau, along with three members of the National Labor Relations Board.” (Greg Sargent, “Justice Department Backs Legality Of Obama Appointments,” Reuters, 1/4/12)

Clinton Office Of Legal Counsel “Said The President Had The Power To Make Recess Appointments When The Senate Was In Recess For More Than Three Days”:

“In a 1993 brief, the Office of Legal Counsel said the president had the power to make recess appointments when the Senate was in recess for more than three days.” (Victoria McGrane, “Republicans Press Justice Dept. On Recess Appointments,” The Wall Street Journal, 1/6/12)

“A December 2011 Congressional Research Service report notes that from the beginning of Ronald Reagan’s presidency to the end of George W. Bush’s, the shortest recess in which a president made an appointment was 10 days.  The report also references a 1993 Justice Department memorandum issued by then-Attorney General Janet Reno.  It implied that a recess of more than three days was needed before the president could issue an appointment.” (F. Vincent Vernuccio, “No Time For Advice And Consent,” The Washington Times, 1/6/12)

Obama Deputy Solicitor General Questions Legality Of Recess Appointments:

“When President Obama’s Department of Justice (DOJ) defends Obama’s ‘recess appointment’ – made today after the Senate adjourned yesterday – his lawyers will have to argue against the position they took on recess appointments last year, during a Supreme Court hearing.  Deputy Solicitor General Neal Katyal told Chief Justice John Roberts that ‘the [congressional] recess has to be longer than 3 days’ for the president to have the power to make a recess appointment, recalls House Speaker John Boehner, R-Ohio, while criticizing Obama’s recess appointment of Richard Cordray to lead the Consumer Financial Protection Bureau.” (Jowl Gehrke, “Obama's DOJ Says 'Recess' Appointment Illegal,” Washington Examiner, 1/4/12)

The Workforce Fairness Institute is an organization committed to educating voters, employers, employees and citizens about issues affecting the workplace. To learn more, please visit: http://www.workforcefairness.com.

To schedule an interview with a Workforce Fairness Institute representative, please contact Danny Diaz at (202) 280-9189.

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