Memo Defends Obama on Recess Appointments

By CHARLIE SAVAGE
NYT

WASHINGTON — President Obama had the power to lawfully consider the Senate to be on a lengthy break — even though Congress contended otherwise — and make recess appointments, the Justice Department concluded in a previously secret legal memorandum it made public on Thursday.

In the 23-page document, Virginia A. Seitz, the assistant attorney general for the Office of Legal Counsel, concluded that the Senate’s “pro forma” sessions — in which a single senator comes 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 when the body was in recess.

“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,” Ms. Seitz wrote.

The legal analysis of the memorandum tracked the arguments made by the White House counsel, Kathryn Ruemmler, on Jan. 4, the day Mr. Obama appointed Richard Cordray as director of the new Consumer Financial Protection Bureau and three members of the National Labor Relations Board.

(More here.)