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Recess Appointments: Release the Legal Advice—A Commentary by Bruce Ackerman ’67

The following commentary was published in the Wall Street Journal on January 11, 2012.

Recess Appointments: Release the Legal Advice
By Bruce Ackerman ’67

On Friday evening, Republicans began their legal counterattack against President Obama's recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board. But they took aim at the wrong target.

Iowa Sen. Charles Grassley, writing for all eight Republican members on the Judiciary Committee, has asked Attorney General Eric Holder to elaborate the Justice Department's position on the key issues. Their request seems reasonable, since the elite group in the Department's Office of Legal Counsel has traditionally served as the executive branch's authoritative spokesman on matters of high legal importance.

But this is no longer true. Increasingly, it is the White House, not the Justice Department, that is making the tough legal calls—without the disciplined staff work and traditions of independence that have permitted the Office of Legal Counsel to win legal credibility over the past 75 years.

This shift in legal authority is a bitter legacy of the George W. Bush administration, where the White House exerted intense pressure on members of the Office of Legal Council to get the decisions it wanted and promulgated a stream of remarkably superficial presidential signing statements nullifying parts of congressional statutes on problematic constitutional grounds. While President Obama has distanced himself from this legacy, he has relied on other techniques to propel the same shift of power in his direction.

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. The entire Judiciary Committee, Democrats as well as Republicans, should be demanding the immediate publication of her opinion. While it is important to know whether the Office of Legal Counsel dissented, her views were the ones that won presidential endorsement.

Publication is particularly imperative given the nature of the current controversy. Under current law, the president appoints his counsel, along with almost all other White House aides, without the need for Senate approval. In contrast, the head of the Office of Legal Counsel, Assistant Attorney General Virginia Seitz, has gained the Senate's advice and consent.

This is no small difference in a dispute between the president and the Senate on recess appointments. If Mr. Obama had turned to Ms. 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.

These casual remarks cannot substitute for a serious written opinion confronting the relevant judicial precedents and historical practices that have governed recess appointments over the past two centuries. I believe that these sources support Ms. Ruemmler's "common sense" approach—but I can well understand why other constitutionalists disagree. Yet this scholarly debate is irrelevant for present purposes. The question is not what one or another pundit thinks. It is whether the president has an obligation to make his own constitutional case, or merely announce his judgment by fiat.

To ask the question is to answer it. All thoughtful people, Democrat and Republican alike, should insist that Ms. Ruemmler publish her opinion without delay. This is the only way in which a serious presidential dialogue with the Senate, and the American people, can begin.

Mr. Ackerman is professor of law and political science at Yale and the author, most recently, of "The Decline and Fall of the American Republic" (Harvard University Press, 2010).