White House mum over possible appointment legal advice

WASHINGTON Thu Jan 5, 2012 8:38pm EST

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WASHINGTON (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 Libya.

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 meltdown.

"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 December 17 and will not be back until January 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 court."

(Editing by Cynthia Osterman)

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