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Republicans Press Justice Department On Legality Of Recess Appointments

Chuck Grassley

First Posted: 01/06/12 06:21 PM ET Updated: 01/06/12 06:31 PM ET

WASHINGTON -- House and Senate Republicans fired off letters to the Justice Department on Friday demanding to know what role the agency played, if any, in advising President Barack Obama ahead of this week's controversial recess appointments.

Eight Senate Republicans submitted a laundry list of questions to Attorney General Eric Holder, pressing him on what the Justice Department's Office of Legal Counsel may have told Obama before he made four recess appointments at a time when Congress may not have technically been in recess. The senators ask Holder if he stands by what the agency has "clearly" said in the past about a recess technically needing to be longer than three days for the president to have the authority to make appointments. They also ask whether he thinks Obama's appointments this week were constitutional, despite Congress never having officially adjourned.

The letter is signed by Sens. Chuck Grassley (Iowa), Orrin Hatch (Utah), Jon Kyl (Ariz.), Jeff Sessions (Ala.), Lindsey Graham (S.C.), John Cornyn (Texas), Mike Lee (Utah) and Tom Coburn (Okla).

"The Justice Department and the White House owe it to the American people to provide a clear understanding of the process that transpired and the rationale it used to circumvent the checks and balances promised by the Constitution," Grassley, the ranking Republican on the Senate Judiciary Committee, said in a statement. "Overturning 90 years of historical precedent is a major shift in policy that should not be done in a legal opinion made behind closed doors hidden from public scrutiny."

Republicans have been fuming since Obama announced Wednesday that he was using his executive power to bypass the Senate -- and challenge the very idea of how Congress defines being in session -- to install Richard Cordray as the director of the Consumer Financial Protection Bureau. He followed that action with three more appointments to the National Labor Relations Board, another contentious panel.

House Financial Services Committee Chairman Spencer Bachus (R-Ala.) also wrote a similar letter.

"President Obama's decision earlier this week to circumvent the Senate confirmation process and install Richard Cordray as the director of the Consumer Financial Protection Bureau ... raises a number of troubling constitutional and legal questions," Bachus wrote. "It has also prompted speculation as to what role, if any, the Department of Justice ... played in advising the President on the legal merits of this action."

Both letters state that Holder has until Jan. 20 to respond.

A Justice Department spokeswoman declined to comment on the Republicans' letters, but pointed to a statement by White House Counsel Kathryn Ruemmler defending Obama's legal authority to make the appointments.

"The President has the constitutional authority to make recess appointments. We believe that for functional and practical purposes, the Senate is in recess. Therefore, the President has made a recess appointment," Ruemmler said. "The mere fact that the Senate has stated that it is in 'pro forma' session at which no business shall be conducted does not change the fact that the Senate is unable to perform its constitutional role in the confirmation process which is to provide advice and consent on the president's nominees. That is the purpose for which the President has recess authority under the Constitution so he can continue to fulfill his Constitutional function, which is to run the government, when the Senate is unavailable to fulfill its function, and it currently is unavailable despite the fact that it is in a 'pro forma' session for 30 seconds every three days."

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