Friday’s Wall Street Journal contained an article aptly entitled Contempt For The Constitution, in which they point out the inconsistent, if convenient, (to them) interpretations given to the nation’s founding document by the Obama administration’s Justice Department’s Office of Legal Counsel on Thursday.
There are numerous occasions where the administration is pleased to use the lack of a quorum in the Senate to push through its agenda, by taking advantage of the fact that the Senate often conducts business in pro forma sessions where much of the chamber is absent. In fact, the recent payroll tax holiday signed into law by the President was conducted under just such a scenario.
The WSJ editorial points out the weakness of Assistant Attorney General Virginia Seitz’s argument in suggesting that such pro forma sessions aren’t technically sessions. (From the journal editorial) In her 23 page opinion, she states that
… As “a practical matter,” in those sessions the Senate isn’t capable of receiving and acting on nominations to the executive branch and therefore cannot exercise its advice and consent duties. Ms. Seitz points in particular to a Senate “standing order”—the rules of order it adopts to govern its procedures—that no business would be transacted during the pro forma sessions. If the Senate itself says it can’t conduct business, she says, then the President can conclude it isn’t really in session.
Aside from the inherent weakness of her argument and “reasoning,” the journal identifies the bigger issue – a government by fiat, rather than by rule of law.
The practical effect of Ms. Seitz’s legal logic is that the President could make a recess appointment when the Senate adjourns for the day, or for lunch. He could also decide that the Senate isn’t functioning to his liking—for instance, by dragging its feet on his nominations—and recess appoint nominees even when the Senate is conducting other business.