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.
"It turns out that the action not only contradicts long-standing practice, but also the view of the administration itself," Boehner's office notes on his blog.
Katyal's comment on recess appointment powers came during a 2010 case involving whether the National Labor Relations Board (NLRB) could operate even when it had only two of the five NLRB members seated. Katyal had to explain why Obama hadn't recess appointed the necessary NLRB members. From the transcript, courtesy of the Speaker's blog:
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?
MR. KATYAL: The -- the recess appointment power can work in -- in a recess. I think our office has opined the recess has to be longer than 3 days. And -- and so, it is potentially available to avert the future crisis that -- that could -- that could take place with respect to the board. If there are no other questions –
CHIEF JUSTICE ROBERTS: Thank you, counsel.