Justice Department Says Recess Appointments Are Constitutional

Richard Cordray

Source: Ed O’Keefe / The Washington Post

President Obama’s decision to issue recent recess appointments is constitutional, the Justice Department said in a legal memo released Thursday that the White House sought as a way to bolster the move.

Obama issued recess appointments last week for Richard Cordray to lead the new Consumer Financial Protection Bureau and for three nominees to serve on the National Labor Relations Board. The move angered congressional Republicans who called the appointments an unprecedented presidential power grab.

But Obama’s appointments were legal, DOJ said, because recent pro-forma sessions by the U.S. Senate — some lasting just a few seconds — didn’t constitute legitimate sessions that could block a recess appointment.

“Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to ‘receive communications from the President or participate as a body in making appointments,’” the Office of Legal Counsel wrote in a Jan. 6 memo.

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