President Obama thinks he merely stretched his powers under the Constitution in making so-called recess appointments for three members of the National Labor Relations Board (NLRB) and the Director of the Consumer Financial Protection Bureau (CFPB). Former U.S. Attorney General Edwin Meese III and counsel Todd Gaziano made clear in their Washington Post editorial of January 6, 2012, that the President violated the Constitution with the purported appointments.
The President takes an oath before God to preserve, protect and defend the Constitution of the United States. Most Presidents, before they take an action that — like the purported Obama recess appointments — will test the outer limit of their powers under the Constitution, seek the advice of the Attorney General. Indeed, Congress has passed a law (28 U.S.C. 511) that requires the Attorney General to give the President legal advice upon request: “The Attorney General shall give his advice and opinion on questions of law when required by the President.” That statute helps carry out the Constitutional provision that the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”
A prudent President would have sought the advice of the Attorney General on whether the so-called recess appointments were within the President’s constitutional power. But, when asked in a White House Press Briefing on January 5, 2012, whether the Department of Justice had provided a legal opinion to the President in advance of the recess appointments, the President’s press secretary would not say. Even if the White House is going to take the position that it will not release the contents of a legal opinion rendered by the Department of Justice on the ground that the contents are legally privileged from disclosure, it is odd that the White House would refuse to confirm or deny whether such a Department of Justice legal opinion even exists.
It is reasonable that people are asking the White House whether a Department of Justice legal opinion was issued before the President made the purported recess appointments. The question of the existence or not of such a legal memo has a bearing on the judgment of the President. If such a Department of Justice memo exists, then at least the country knows that the President demonstrated at least some measure of prudence and thought in testing the outer limits of the Constitution by seeking in advance legal advice from the country’s chief legal officer. If, however, no such memo exists, then the country knows that the President was less prudent and thoughtful and did not bother with legal advice from the Attorney General. The degree of prudence and thoughtfulness of a President in performing his duties is a legitimate subject of public interest — especially for a President asking the people to re-elect him.
Clients are not bound to follow the advice of their lawyers. Indeed, the Constitution commands the President himself to “take Care that the Laws be faithfully executed.” But a wise client seeks the advice of his lawyer before taking a big risk. And a prudent and thoughtful President seeks the legal advice of the Attorney General before testing the outer limits of the constitutional powers of the presidency.
So, Mr. President, did the Department of Justice issue a legal opinion in relation to your purported recess appointments to the NLRB and the CPFB before you made them?