White House says DOJ recess appointment memo 'will pass muster'

The White House expressed confidence Thursday that a Justice Department memo defending President Obama's recess appointments would hold up in court.

Press secretary Jay Carney said the DOJ memo — which argues that the Obama acted well within the law when he made controversial recess appointments last week — is on solid legal ground. 

"We believe our legal argument is very strong and will absolutely pass muster," Carney said.

In the memo, Justice's Office of Legal Counsel (OLC) 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 to the Consumer Financial Protection Bureau (CFPB) and the National Labor Relations Board.

The OLC 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.

Carney said Obama did not make a decision on the recess appointments until he heard the Justice opinion.

"The opinion was rendered verbally prior to the date of the opinion itself, Carney said. "The opinion was based on the advice provided by OLC."

The president broke with years of precedent last week when he installed Richard Cordray as director of the consumer bureau.

Republicans slammed the move as an unconstitutional power grab and have hinted at legal challenges.

Cordray's nomination had been held up by Senate Republicans, who vowed to block any nominees for the top CFPB job until the agency's leadership structure was changed.  

Carney said "the absolute necessity" of appointing Cordray "remains as clear today" as it was last week.

— Alexander Bolton contributed to this report.