White House: Recess appointment based on legal opinion that Congress is in recess

But senior White House press officials said White House counsel is essentially declaring these pro forma sessions as part of a recess in which recess appointments can be made.

"The fact of the matter is the Senate has been in recess and will continue to be in recess," White House spokesman Jay Carney said in an Air Force One briefing on Wednesday.

"In the unanimous consent that sent the Senate in recess, it was explicitly stated that the Senate would conduct no business during this period, from Dec. 17 or something until Jan. 23," Carney said. "That sounds like a recess to me, and as a legal matter, it is very much a recess."

When pressed on the issue, Carney said, "[T]he president's counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks. The Constitution guarantees the president the right, provides the president the right to make appointments during Senate recesses, and the president will use that authority to make this appointment.

"Where pro forma sessions are used, as the Senate has done and plans to continue to do, simply as an attempt to prevent the president from exercising his constitutional authority, such pro forma sessions do not interrupt the recess," he added. "And I would note that this is the view of White House counsel."

White House communications director Dan Pfeiffer made similar points in a White House post on Wednesday.

"The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks," he said. "In an overt attempt to prevent the president from exercising his authority during this period, Republican senators insisted on using a gimmick called 'pro forma' sessions, which are sessions during which no Senate business is conducted and instead one or two senators simply gavel in and out of session in a matter of seconds.

"But gimmicks do not override the president’s constitutional authority to make appointments to keep the government running," Pfeiffer said.

Cordray's recess appointment, which will last through 2013 unless he or another candidate is confirmed by the Senate, drew swift criticism from Republicans. House Financial Services Committee Chairman Spencer Bachus (R-Ala.) called the move an attack on the Constitution, and Rep. Jeff Landry (R-La.) said he would introduce a bill to block the nomination until a court decides whether the appointment is constitutional.

More broadly, White House officials defended the move Wednesday by saying Cordray himself has bipartisan support, that a leader for the CFPB is needed to regulate financial transactions affecting consumers and that two former Bush administration officials wrote in 2010 that the White House should ignore pro forma sessions.

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