Updated 2:13 p.m.
President Barack Obama had the legal authority to make recess appointments earlier this month, even though the U.S. Senate was technically still in session, the Justice Department concluded in a legal opinion published today.
The department's Office of Legal Counsel opinion, dated Jan. 6, said periodic pro forma sessions in which no business is conducted do not strip the president's power to bypass the Senate in making appointments.
“In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments,” Assistant Attorney General Virginia Seitz said in the 23-page memo.
Seitz said the Senate “could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.”
The Senate, Seitz said, does not “uniformly appear to consider its recess broken by pre-set pro forma sessions.” Pro forma sessions, she said, typically last only a few seconds. Republican critics contend a recess must be longer than three days in order for a president to bypass the Senate to make an appointment.
Obama’s Jan. 4 appointment of Richard Cordray to lead the new Consumer Financial Protection Bureau stirred controversy among Republicans, who were opposed to his nomination. The same day Obama installed Cordray, the president also appointed three new members to the National Labor Relations Board.
Sen. Chuck Grassley (R-Iowa), the ranking minority member of the Senate Judiciary Committee, said in a statement issued this afternoon that the Justice Department's opinion is "unconvincing."
"Its conclusion is at odds with the text of the Constitution and the administration’s own previous statements," Grassley said. "It fundamentally alters the careful separation of powers between the executive and legislative branches that the framers crafted in the Constitution."
Seitz said there’s little judicial guidance addressing the ability of a president to make an intrasession recess appointment. “Due to this limited judicial authority, we cannot predict with certainty how courts will react to challenges of appointments made during intrasession recesses, particularly short ones,” Seitz said.
Cordray has agreed to testify Jan. 24 at the House Committee on Oversight and Government Reform, where the legality of his appointment is likely to be discussed.
The legal memo said “the longstanding views of the Executive and Legislative Branches support the conclusion that the President may make recess appointments when he determines that, as a practical matter, the Senate is not available to give advice and consent to executive nominations."
Seitz said allowing the Senate to "prevent" the president from making recess appointments is inconsistent with the purpose of the Recess Appointments Clause.
"If the Senate can avoid a 'Recess of the Senate' under the Clause by having a single Member 'gavel in' before an empty chamber, then the Senate can preclude the President from making recess appointments even when, as a practical matter, it is unavailable to fulfill its constitutional role in the appointment process for a significant period of time," the OLC memo said.
Republican members of the Senate Judiciary Committee earlier this month wrote to OLC seeking information on what role the section played in advising the White House on Obama's recess appointments.