Attorney General Eric Holder, testifying on Capitol Hill before the Senate Appropriations subcommittee, was stumped by a question from Senator Lamar Alexander (R-TN) on recess appointments.

The Constitution gives the President of the United States power to appoint people with the advice and consent of the Senate, meaning that the Senate must confirm the President’s appointments to the relevant offices. When the Senate is not available, or in a recess, the President can appoint people to those posts who remain in office until they receive the Senate’s confirmation or until the end of the next Senate session. These are what are known as ‘recess appointments.’

The Constitution also states that neither the House nor the Senate may recess without the consent of the other chamber. This is important as during the recess appointments the Attorney General is queried about below, to my knowledge the House never gave consent to the Senate to be in recess.

To prevent a recess appointment, the Senate can stay in session to prevent a time when their advice is not available. In 2007 and 2008, Senate Majority Leader Reid used a new tactic of pro-forma sessions to prevent President Bush from making recess appointments. As Senator Alexander notes below, President Bush didn’t like Senator Reid’s tactic but, he respected the Senate.

The new 2012 session of Congress began on January 3rd in a pro forma session, and the pro forma sessions were to be conducted until the House and Senate fully returned on January 23. On January 4, President Obama appointed 3 people to the National Labor Relations Board (NLRB) and one to head the Consumer Financial Protection Bureau. This is what led to Senator Alexander’s questions below.

The Justice department’s ‘OLC’ (Office of Legal Counsel) opinion that the Attorney General references below provided the legal justification for President Obama to make the appointments. That opinion concluded that although the Senate was conducting pro forma sessions, the fact remained that the Senators were not in town and not available for proper advice and consent. The opinion, which the Attorney General says was based upon precedence, should have taken into account President Bush’s actions which it did not.

Kudos to Senator Alexander for a great line of questioning.

(Video via Fox Nation)