Sen. Chuck Grassley (R-Iowa) is asking the Obama administration whether recess appointments overnight and on the weekend are possible after the president's decision this week to appoint four federal officials despite pro forma sessions by Congress.
In a letter to Attorney General Eric Holder, Grassley and seven other Republican senators on Friday pressed the Obama administration for more details about its decision to make the controversial recess appointments.
Grassley's letter said the White House broke with 90 years of precedent on Wednesday when it appointed Richard Cordray to the head the Consumer Financial Protection Board (CFPB) and three others to the National Labor Relations Board.
"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 chairman of the Senate Judiciary Committee, said in a statement announcing the letter. "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."
The letter outlined the history of that precedent, which started with a 1921 opinion from the attorney general that Senate adjournment for two days is not a recess, and that an adjournment of five or 10 days might also be enough. The letter notes that this opinion was reaffirmed in 1960, 1992 and 2001, and that the Department of Justice also argued before the Supreme Court in 2010 that "the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than three days."
"Taken together, these authorities by the department clearly indicate the view that a congressional recess must be longer than three days — and perhaps at least as long as 10 — in order for a recess appointment to be constitutional," the letter states.
The letter then asks eight questions about how Justice got around this prior position. For example, it asked whether the original 1921 opinion was withdrawn to make way for the new opinion and whether other opinions were withdrawn.
It also asks whether Justice was asked to render a formal opinion, whether that opinion will be made public, and whether Justice believes this week's decision was constitutional.
Aside from Grassley, the letter is signed by Sens. Tom Coburn (R-Okla.), John Cornyn (R-Texas), Lindsey Graham (R-S.C.), Orrin Hatch (R-Utah), Jon Kyl (R-Ariz.), Mike Lee (R-Utah) and Jeff Sessions (R-Ala.).
House Financial Services Committee Chairman Spencer Bachus (R-Ala.) also wrote to Holder Friday, asking many of the same questions.
Specifically, Bachus asked whether Justice provided any input to the decision and asked that written documents on the matter be made public. He also asked for the department's view on whether the Senate was in recess when Cordray was appointed, and whether this opinion was shared with the White House before the decision was made.
Bachus asked whether the CFPB position Cordray has filled was technically a "vacancy" that could be filled with a recess appointment, given that the position was newly created.
The White House has not released a technical explanation for its decision. However, White House officials explained this week that they based the appointments on a legal opinion that Congress is in recess despite Congress meeting in pro forma sessions because no work is expected until late January.