The Department of Justice offered a defense Thursday for President Obama’s controversial decision to make several recess appointments while Congress was holding pro forma sessions.
In a memo, Justice argued the pro forma sessions held every third day in the Senate do not constitute a functioning body that can render advice and consent on the president’s nominees. It said the president acted consistently under the law by making the appointments.
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 Justice Department's memo is sound.
"We believe our legal argument is very strong and will absolutely pass muster," Carney said, adding that Obama did not make a decision on the recess appointments until the opinion was rendered.
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.
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It cited statements from Republican and Democratic senators, including James InhofeJames InhofeOptimism rising for infrastructure deal Repeal of Obama drilling rule stalls in the Senate GOP senator: EPA 'brainwashing our kids' MORE (R-Okla.), John ThuneJohn ThuneSenators move to bolster cyber resources for small businesses Optimism rising for infrastructure deal McConnell: ObamaCare 'status quo' will stay in place moving forward MORE (R-S.D.) and Patrick LeahyPatrick LeahySenate braces for fallout over Supreme Court fight Register of copyrights should be presidential appointee GOP senator on going nuclear: 'I really hope that it doesn't come to that' MORE (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 GrassleyChuck GrassleyOvernight Finance: Dems seek probe of acting SEC chief | Defense hawks say they won't back short-term funding | Senate seen as start point for Trump infrastructure plan | Dems want more money for IRS Overnight Regulation: Trump administration lifts Obama freeze on federal coal mining Senators offer bill aimed at helping IRS whistleblowers MORE (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.
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 2:58 p.m.