January 12, 2012 / 4:18 PM / 8 years ago

Justice Department backs Obama recess appointments

WASHINGTON (Reuters) - The U.S. Justice Department on Thursday defended President Barack Obama’s controversial recess appointments to two agencies, releasing a detailed legal analysis of why the appointments passed constitutional muster.

U.S. President Barack Obama shakes hands with Richard Cordray (R) after appointing him to head the Consumer Financial Protection Bureau during a trip to Cleveland, Ohio January 4, 2012. REUTERS/Kevin Lamarque

The legal opinion followed furious complaints from Senate Republicans who accused Obama of trampling the Constitution and sidestepping the Senate confirmation process when he installed a new chief at the U.S. Consumer Financial Protection Bureau and three members of the National Labor Relations Board.

Republicans blocked Obama’s nomination of Richard Cordray to head the recently established consumer bureau, which they oppose as an excessive government intrusion on the financial industry. The bureau was set up after the 2008 financial crisis and Democrats argue it is needed to keep tabs on the industry.

The fight over appointments goes back more than a century and has escalated in recent years as more and more nominees have been blocked. Democrats in the Senate first sought to use short breaks to bar then President George W. Bush from making recess appointments and now Republicans have done the same to Obama.

However, the Justice Department’s Office of Legal Counsel, which provides legal advice to the president as well as government agencies, said Obama was within his constitutional authority to make appointments when the Senate was briefly away.

“We conclude that while Congress can prevent the president from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess,” the opinion said.

A legal cloud has hung over whether the appointments were constitutional because the Senate at the time was holding brief so-called pro forma sessions every three days, which Republicans thought would block Obama from making recess appointments.

The White House had previously argued that the Senate began its holiday break on December 17 and would not be back until January 23, thus enabling Obama to make the recess appointments.

“The Senate as a body does not uniformly appear to consider its recess broken by pre-set pro forma sessions,” the 23-page opinion said, authored by Virginia Seitz, assistant attorney general for the Office of Legal Counsel.

She also said that the pro forma sessions have lasted only seconds and that the “purpose of these sessions avowedly is not to conduct business,” noting that messages to the Senate were not accepted during those meetings.


The opinion drew quick fire from Senate Republicans who called it “unconvincing” and legally incorrect.

“It fundamentally alters the careful separation of powers between the executive and legislative branches that the framers crafted in the Constitution,” said Chuck Grassley, the senior Republican on the Senate Judiciary Committee.

The U.S. Chamber of Commerce has been considering a lawsuit challenging the constitutionality of the appointments and legal experts said anyone subject to rules or regulations imposed by the two agencies could challenge whether they were legal.

“We are not going to sue today, because one has to see what he (Cordray) does and what the three new guys at the National Labor Relations Board do,” said Tom Donohue, head of the Chamber of Commerce, noting that “everybody’s trying to sort out” the details of a possible constitutional challenge.

Republicans have pointed out that the Senate did conduct legislative business during the December 23 pro forma when the chamber approved a tax cut extension and appointed lawmakers to work out differences on pending tax legislation.

Seitz’s legal opinion acknowledged such views and that while it was conceivable that the Senate could have provided advice and consent on the pending nominations during a pro forma session, those examples did not bar the president’s authority.

Because the scheduling order for those sessions said there would be “no business conducted,” Obama could determine the Senate was in recess “regardless of whether the Senate has disregarded its own orders on prior occasions.”

The opinion was dated January 6, two days after Obama made the appointments, however an administration official said the advice was given orally to the White House before the written opinion.

Additional reporting by David Ingram: Editing by Kevin Drawbaugh and Eric Walsh

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