The department released a 23-page legal opinion Thursday summarizing the advice it gave the White House before the Jan. 4 appointments. GOP leaders have argued the Senate was not technically in recess when Obama acted so the regular Senate confirmation process should have been followed.
Assistant Attorney General Virginia Seitz wrote that the president has authority to make such appointmentsbecause the Senate is on a 20-day recess, even though it has held periodic pro forma sessions in which no business is conducted. Seitz argued the pro forma sessions — some with as few as one member present — have not been sufficient for the chamber to exercise its constitutional authority to advise and consent to normal presidential nominations.
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.
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.
The Justice official who wrote the opinion, Seitz, heads the department's Office of Legal Counsel, which is empowered to provide binding legal opinions to the executive branch.
Her new memo cites a Justice Department legal opinion from President George W. Bush's Republican administration in justifying Obama's recent appointments. The Bush administration opinion from 2004 says that a recess during a session of the Senate can meet constitutional requirements for permitting the president to make recess appointments as long as the recess is of sufficient length. Seitz noted that the last five presidents have made recess appointments during recesses of 14 days or less.
In December, the Senate agreed to adjourn until Jan. 23 but to convene pro forma sessions in which no business was to be conducted every Tuesday and Friday.
The Senate pro forma sessions in which no business was conducted, do not "in our opinion" interrupt therecess "in a manner that would preclude the president" from acting, Seitz wrote in her Jan. 6 opinion.
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.
In an op-ed article in the Washington Post, Edwin Meese, who served as attorney general under Republican President Ronald Reagan, and Todd Gaziano, a former Office of Legal Counsel attorney who is now a fellow at the conservative Heritage Foundation, called Obama's actions "a breathtaking violation of the separation of powers."
The GOP's unsuccessful opposition to creating the consumer watchdog agency has turned into opposition to potential nominees to lead the office. Stiff Republican opposition headed Obama off from even nominating Elizabeth Warren, the interim official who helped set up the office, to be its permanent chief.
There is GOP resistance as well to filling slots on the National Labor Relations Board that Republicans feel has become pro-labor under Obama. If Republicans keep enough slots vacant on the labor board, they can prevent it from acting at all.
The pro forma sessions have been used by both Democratic and Republican senators in an effort to stave offrecess appointments.
Senate Majority Leader Harry Reid, D-Nev., said in 2008 that the pro forma sessions were designed to prevent the president — at that time Bush — from exercising his constitutional power to make recess appointments.
Last year with Obama in the White House, some Republican senators urged House Speaker John Boehner, R-Ohio, not to pass any resolution that would allow the Senate to recess or adjourn for more than three days. The Constitution provides that neither the House nor the Senate shall adjourn for more than three days without the consent of the other. No concurrent resolution of adjournment has been introduced in either chamber since May of last year.