Justice: Recess actions were OK

WASHINGTON — President Barack 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 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,” Seitz wrote.

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

At the time, Ruemmler declined to say whether the Office of Legal Counsel had approved the step, leading some to speculate that the White House had either failed to consult the Justice Department or had rejected its conclusions. Seitz’s memorandum was dated Jan. 6, but says she had provided the same legal guidance orally to Ruemmler.

Still, Obama’s recess appointments remain deeply controversial. Senate Republican Leader Mitch McConnell of Kentucky denounced the move the day it happened, saying Obama had “arrogantly circumvented the American people” and endangered “Congress’ role in providing a check on the excesses of the executive branch.’”