WASHINGTON, Jan 5 (Reuters) - The White House on
Thursday refused to say whether lawyers at the U.S. Justice Department gave the green light to President Barack Obama's
controversial appointments to two agencies but experts said the
department almost certainly did provide advice.
The department's Office of Legal Counsel advises the
president and government agencies. In the past, it has issued
guidance about the constitutionality of so-called recess
appointments that are done when the Senate is away.
That counsel is seen as critical to providing justification
for decisions and actions by a president. It has been key on
other major issues, such as the use of military force in
Obama on Wednesday 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.
Experts said an opinion was probably provided on the moves,
but the White House and Justice Department refused to confirm or
deny the existence of an opinion, let alone release it.
"We routinely consult with the Department of Justice on a
range of legal matters," White House spokesman Jay Carney told
reporters. "But we also routinely don't delve into the specifics
of any confidential legal guidance that the president or the
White House in general would receive."
Still, the department's Office of Legal Counsel has released
dozens of its opinions in the past. If legal challenges ensue on
the latest appointments, any opinion rendered could go public.
Republicans have blasted the recess appointments as
unconstitutional and a break from the past. Legal challenges are
expected to the appointments and to actions by the agencies.
In a sign that the Consumer Financial Protection Bureau was
trying to move past the uproar, its new chief Richard Cordray
said he plans to regulate payday lenders, mortgage servicers,
private student lenders and others in finance.
DISCLOSE ADVICE - EXPERTS
Legal experts said the White House likely did consult the
Office of Legal Counsel on the recess appointments and urged the
Obama administration to release the advice.
"The legal adviser to the president traditionally has asked
the Office of Legal Counsel for an opinion before making recess
appointments where it's a situation that hasn't already been
addressed," said John Elwood, a former senior deputy in that
office and now a partner at Vinson & Elkins in Washington.
Chuck Grassley, senior Republican on the Senate Judiciary
Committee, called on the administration to issue its rationale.
"The public's business ought to be public," he said in a
statement. "And the president promised to run the most
transparent administration in history."
Controversy has swirled around the consumer bureau since it
was created by a 2010 law. Republicans and bankers say its
powers are too broad. Democrats say the bureau is needed to keep
tabs on the financial industry and prevent another economic
"It's the kind of thing that OLC might not write a new
opinion on if the existing opinions already cover the situation.
But generally it's the kind of opinion that if written should be
made public," said Dawn Johnsen, who was nominated to head that
office but was blocked by Senate Republicans. She is a professor
at Indiana University's Maurer School of Law.
LENGTH OF RECESS IS KEY
A 1992 Office of Legal Counsel memorandum gave President
George H.W. Bush the authority to make appointments when the
Senate was on an intra-session break, but it noted that past
doctrine has been that the recess should be lengthy.
That memo noted a 1921 determination by Attorney General
Harry Daugherty. It said the president could largely use his
discretion to determine if the Senate was in recess, but added
that "an adjournment for 5 or even 10 days" was insufficient to
"constitute the recess intended by the Constitution."
The Obama administration has argued that the Senate began
its holiday break on Dec. 17 and will not be back until Jan. 23,
thus enabling Obama to make the recess appointments.
Senate Republicans have said so-called proforma sessions
every three days bar recess appointments. But at least two times
in history there have been such appointments when the Senate has
been on a break for less than three days.
Regardless, legal challenges to the actions by the consumer
bureau and NLRB are likely, experts have said. The U.S. Chamber
of Commerce has said it would not rule out a lawsuit.
A challenge could be filed by "anybody affected by an agency
decision," said Kenneth Geller, managing partner at the law firm
Mayer Brown. Geller brought a legal challenge to a recess
appointment in 1993, but that focused on whether there was an
actual vacancy to fill.
Elwood, who worked at OLC during the George W. Bush
administration, noted that "there are very few cases involving
recess appointments ... but these are (appointees) who I think
foreseeably will take actions that will be challenged in
(Reporting by Jeremy Pelofsky and David Ingram)
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