“Although the Senate will have held pro forma sessions regularly from January 3 to January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the president from determining that the Senate remains unavailable throughout to ‘receive communications from the president or participate as a body in making appointments,’” Virginia Seitz, assistant attorney general for the Office of Legal Counsel, wrote in the memo dated Jan. 6.
The Office of Legal Counsel concluded the president has authority to make recess appointments during a recess and that Congress can only prevent the president from making such appointments “by remaining continuously in session and available to receive and act on nominations,” not by holding pro forma sessions.
Republicans, who had set up the pro forma sessions to prevent Obama from making the appointments, are expected to challenge them in court.
Obama used his recess-appointment powers to place Richard Cordray as director of the Consumer Financial Protection Bureau. He also named three people to the National Labor Relations Board.
White House press secretary Jay Carney said the legal reasoning in the memo is sound.
“We believe our legal argument is very strong and will absolutely pass muster,” Carney said, adding that the “absolute necessity” of appointing Cordray “remains as clear today” as it was last week.
Seitz offered several points in defense of Obama’s recess appoinments.
The memo noted that pro forma sessions typically last only a few seconds and require the presence of only one senator.
It cited statements from Republican and Democratic senators, including James Inhofe (R-Okla.), John Thune (R-S.D.) and Patrick Leahy (D-Vt.), indicating the lawmakers themselves did not consider the cursory sessions as true breaks in the Senate recess.
The memo noted that the Senate’s website does not recognize pro forma sessions as breaking up extended recesses into mini-recesses, as Republicans now argue.
It also notes that messages from the president received during recess are not laid before the Senate or entered into the Congressional Record until the full Senate returns to work, even if pro forma sessions have been convened in the interim.
Sen. Chuck Grassley (R-Iowa), who had called on the administration to make the memo public, called Justice’s argument “unconvincing” and said it flies in the face of the Constitution.
“This is clearly an escalation in a pattern of contempt for the elected representatives of the American people,” Grassley said in a statement. “The Senate will need to take action to check and balance President Obama’s blatant attempt to circumvent the Senate and the Constitution, a claim of presidential power that the Bush Administration refused to make.”
The federal judiciary has shown reluctance to limit the president’s power to make recess appointments.
In 2004, the 11th U.S. Circuit Court of Appeals validated the presidential power and refused to set a minimum length of recess for such appointments to be valid.
“The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today,” the court ruled in Evans v. Stephens.
On Thursday, Tom Donohue, president and CEO of the U.S. Chamber of Commerce, said the business trade association has not made a decision on challenging the recess appointments in court, a sign the administration might have a strong case.
“We are not going to sue today because one has to see what [Cordray] does and what the three new guys at the National Labor Relations Board do,” Donohue said.
“On this one, we’re working our way through it.”
Amie Parnes contributed.
This story was last updated at 2:32 p.m.