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Office of Legal Counsel Authorized Recess Appointments
By Elizabeth Murphy | January 12, 2022 2:51 pm

The Department of Justice’s Office of Legal Counsel authorized President Barack Obama’s recent controversial recess appointments, the department disclosed Thursday.

Virginia Seitz (American Constitution Society)

The publication of the previously confidential memo answered questions posed by critics who argued the appointments weren’t constitutional because the Senate was in a pro forma session when they were made.

Last Friday, Republican members of the Senate Judiciary Committee wrote Attorney General Eric Holder asking what role the department had in advising or authorizing the appointment of former Ohio Attorney General Richard Cordray to head the new Consumer Financial Protection Bureau, along with three new members of the National Labor Relations Board.

The Republican lawmakers also disputed the constitutionality of the recess appointments, as Main Justice reported. Their letter also inquired whether the Office of Legal Counsel issued an opinion on the recess appointments.

The department’s Jan. 6 legal memo, signed by Assistant Attorney General Virginia A. Seitz, states that the president lawfully used his discretion to appoint Cordray.

“In our judgment, the text of the Constitution and precedent and practice thereunder support the conclusion that the convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a ‘Recess of the Senate’ under the Recess Appointments Clause,” the memo reads. “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.”

Senate Republicans and the administration did not agree on how long the Senate must be adjourned to constitute a recess. In their letter, the legislators cited a 1921 Justice Department opinion that the Senate must be out of session for at least three days and potentially as many as 10 before the president can make a recess appointment. The Jan. 6 opinion details the history of presidential recess appointments, highlighting some made in 11 day recesses and others in 33 days. “We have little doubt that a  20 day recess may give rise to presidential authority to make recess appointments,” the memo states.

Employing pro forma sessions purely to block presidential appointments should not trump the president’s authority to do so in the first place, said White House Counsel Kathryn Ruemmler last week.

The Senate adjourned Dec. 17, only to convene for pro forma sessions every Tuesday and Friday until the lawmakers came back for the new session Jan. 23, the memo states. It goes on to say that pro forma sessions, during which no business is conducted, are not an impediment to the president exercising his recess appointment authority. Senate Democrats began the practice of pro forma sessions to block recess appointments during the George W. Bush administration.

Last week, Obama appointed former Senate Republicans had blocked Cordray’s nomination last month through filibuster. Obama ignited a  constitutional tussle last week by making a recess appointment during a Senate pro forma session. Critics said the Senate was still in session, but the White House argued that with most members home for the winter holiday, it was functionally in recess.

The Office of Legal Counsel provides advice to the executive branch on the legality of its actions.

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