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DOJ OLC - Invalid Recess Appointments Interpretation

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Timothy D. Nestved President Nestved, LLC 03 February 2012 Ms. Virginia A. Seitz, Assistant AG Office of Legal Counsel U.S. Department of Justice 950 Pennsylvania Ave, N.W. Washington DC 20530 Subject: Lawfulness of Recess Appointments Relative to Originating Date of Vacancy Dear Ms. Seitz:

Your Memorandum regarding the "Lawfulness of Recess Appointments during a Recess of the Senate notwithstanding Periodic Pro Forma Session," dated 06 January, is based upon an invalid and flawed interpretation of the so-called "Recess Appointments Clause."

I realize your interpretation of the "constitutional test for whether a recess appointment is permissible" is based upon an opinion from 1921 by Attorney General Daugherty, and subsequently reaffirmed by many, but the interpretation is nonetheless incorrect. Attached are applicable excerpts from an article that defines the correct interpretation of the Framers' intent of the Recess Commissioning Clause (U.S. Const. art. II, ยง 2, cl. 3) and provides applicable analysis of the erred interpretation, thus substantiating the statement the current interpretation is invalid, and therefore unconstitutional.

The analysis is summarized as follows: The determining factor for which officer assignment process the President is permitted to use is based upon when the office vacancy first originated and the Senate session status at that time. The only vacancies the President is permitted to fill during a Senate recess are those vacancies that may originate during the current recess, and the President may fill all such vacancies. The current interpretation, unlike the correct interpretation, introduces two serious shortcomings into the overall officer assignment process, and accepting the current interpretation means the Framers intentionally added the Recess Commissioning Clause to provide the President with a "backdoor" to usurp the check-and-balance they place in the normal appointment process (i.e., usurp the Senate confirmation process).

I know your Memorandum addressed the legality of filling vacancies during Senate pro forma session (and I share your end conclusion), but that is secondary to applying the correct interpretation. As an Executive Department Officer, you are bound by Oath to support the Constitution, and in light of the evidence presented, you face the tough decision to ensure the correct interpretation is enforced and all past invalid recess commissions are promptly voided.


Timothy D. Nestved

Enclosure:        Excerpts from "U.S. Presidential Succession Statute;" 2012, pgs 23-26, 17-18, and 28.

†  Orginial essay on "U.S. Presidential Succession Statute" was revised and updated, forming two separate essays: "Presidential Succession Statute – Constitutional and Unconstitutional" and "Presidential Succession – Entitled Successors"  Applicable revised excerpts are located in the latter of the two revised essays.