RUTHFULLY YOURS

The 23-page memorandum (dated January 6) by Assistant Attorney General Virginia Seitz is meant to justify Mr. Obama’s recess appointments last week of Richard Cordray at the Consumer Financial Protection Bureau and three new members of the National Labor Relations Board—even though the Senate was not in recess but was holding pro forma sessions. The House also did not consent to the Senate’s adjournment, as required by the Constitution’s Article I, section 5, clause 4.

Ms. Seitz concedes that “The question is a novel one, and the substantial arguments on each side create some litigation risk for such appointments,” and little wonder. Most of the opinion is an off-point digression on the constitutionality of recess appointments between Senate sessions, which no one disputes. But on that “novel” question, Ms. Seitz’s legal reasoning is remarkably weak.

She avers that the pro forma sessions aren’t technically sessions. As “a practical matter,” she writes, in those sessions the Senate isn’t capable of receiving and acting on nominations to the executive branch and therefore cannot exercise its advice and consent duties. Ms. Seitz points in particular to a Senate “standing order”—the rules of order it adopts to govern its procedures—that no business would be transacted during the pro forma sessions. If the Senate itself says it can’t conduct business, she says, then the President can conclude it isn’t really in session.

The problem is that the Senate does most of its work by unanimous consent—meaning without objection from present Members and without a vote or quorum. Even a single Senator alone on the floor (or “as a practical matter” one from each party) can use this process to modify the standing order in a heartbeat and conduct business.

The Senate did exactly that to pass Mr. Obama’s payroll tax holiday in December, changing a standing order by unanimous consent to conduct business during an ostensibly pro forma session. Mr. Obama signed that bill. Either that was a real session and therefore his recess appointments are unconstitutional or the bill was invalidly enacted and therefore unconstitutional. Both can’t be true.

The practical effect of Ms. Seitz’s legal logic is that the President could make a recess appointment when the Senate adjourns for the day, or for lunch. He could also decide that the Senate isn’t functioning to his liking—for instance, by dragging its feet on his nominations—and recess appoint nominees even when the Senate is conducting other business.

Last week, White House spokesman Jay Carney claimed Mr. Obama relied on the advice of White House counsel and didn’t mention that the Office of Legal Counsel had been consulted beforehand. Now we know why: The Administration’s position is a made-to-order legal invention.