The legal opinion followed furious complaints from Senate Republicans who accused Obama of trampling the Constitution and sidestepping the Senate confirmation process when he installed a new chief at the U.S. Consumer Financial Protection Bureau and three members of the National Labor Relations Board, reports Reuters.
Senate Republican Leader Mitch McConnell has said Obama has endangered the nation’s systems of checks and balances, and Republican Sen. Orrin Hatch says the appointments are a very grave decision by an autocratic White House.
Senate Republicans have been using their ability to block or stall Senate confirmation of some regular nominees as a way to curb agencies they believe have taken or are poised to take actions they disagree with.
According to The New York Times, in the 23-page document, Virginia A. Seitz, assistant attorney general for the Office of Legal Counsel, argued that the Senate’s “pro forma” sessions during its winter break — in which a single senator has come into the chamber to bang the gavel every three days — could not prevent Mr. Obama from being able to exercise his constitutional power to appoint officials during a recess.
Ms. Seitz wrote: “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.”
On Jan. 4, Obama appointed Richard Cordray, a former attorney general of Ohio, to be the first director of the Consumer Financial Protection Bureau. Obama also appointed two Democrats and a Republican to the National Labor Relations Board that day.
There was stiff Republican opposition to creating the new consumer agency, which was authorized in the financial regulation law, and Republicans have argued that the labor board has tilted toward unions under Obama’s Democratic administration.
Republicans furiously criticized the step, accusing Mr. Obama of violating the constitutional limits of his powers.
On Thursday, Senator Charles E. Grassley of Iowa, the ranking Republican on the Judiciary Committee, said Ms. Seitz’s memo was “unconvincing” and called on the Senate “to take action to check and balance President Obama’s blatant attempt to circumvent the Senate and the Constitution.”
However, the Justice Department’s Office of Legal Counsel, which provides legal advice to the president as well as government agencies, said Obama was within his constitutional authority to make appointments when the Senate was briefly away.
“We conclude that while Congress can prevent the president from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess,” the opinion said.
Beginning in late 2007, the Senate has frequently conducted pro forma sessions that typically last only a few seconds and that “apparently require the presence of only one senator,” Seitz wrote.
Under a legal framework dating back nearly a century, recess appointments have been permitted when the Senate cannot receive communications from the president or participate as a body in confirming nominees, The Huff Post reports.
Traditionally, presidents have not made recess appointments during breaks shorter than 10 days. Under the view that Mr. Obama made the appointments during a three-day recess, his critics contended that his move gutted the confirmation process, establishing a precedent that future presidents could use routinely to install officials without legislative consent if the Senate chamber is briefly empty.
Ms. Seitz, however, said Mr. Obama made the appointments during a 20-day Senate recess — from Jan. 3, when the Constitution requires Congress to convene, to Jan. 23, when lawmakers will return to Washington. Despite the pro forma sessions, she said, the Senate is continuously unavailable to act on nominees throughout that break.