Bloomberg News

Obama Has Recess Appointment Power, Justice Department Says

January 20, 2012

(Updates with comment from lawmaker in 11th paragraph.)

Jan. 12 (Bloomberg) -- President Barack Obama had the power to make recess appointments last week when Congress was taking a brief break, the U.S. Justice Department said in a memo released after Republican complaints of a “power grab.”

The Constitution and precedent support the conclusion that the appointments can be made when lawmakers hold pro forma sessions in which no business is conducted, according to the 23- page memo written by Assistant Attorney General Virginia Seitz and released today.

Republican lawmakers criticized Obama’s decision to name a consumer financial watchdog, Richard Cordray, and three National Labor Relations Board members on Jan. 4 during the congressional recess. They asked the Justice Department to provide information on whether it offered advice about the legality of the appointments.

The Justice Department memo, to the counsel to the president, was dated Jan. 6 and said it was putting in writing and elaborating on advice the department previously provided. The conclusion was provided orally prior to the appointments, according to an administration official, who wasn’t authorized to speak about the matter publicly.

Obama’s recess appointments were supported by Democratic leaders in the House and Senate and drew rebukes from House Speaker John Boehner of Ohio and Senate Minority Leader Mitch McConnell of Kentucky, both Republicans. Boehner on Jan. 4 called the appointment an “extraordinary and entirely unprecedented power grab” by the president.

Constitutional Power

The Constitution gives presidents the power to make appointments when the Senate is in recess. Republicans won bipartisan agreement to keep Congress in pro forma sessions every three days through the holidays in an attempt to keep Obama from making recess appointments.

For more than two decades, lawmakers have used the practice of holding the sessions every three days to head off such appointments.

Pro forma sessions every three days “do not interrupt” the recess in a manner that precludes the president from making recess appointments, Seitz said in the memo.

“The purpose of these sessions avowedly is not to conduct business; instead, either the Senate has intended to prevent the president from making recess appointments during its absence or the House has intended to require the Senate to remain in session (toward the same end),” Seitz wrote.

Remaining in Session

The Senate could only block the president’s ability to make recess appointments by “remaining continuously in session and being available to receive and act on nominations,” according to the Justice Department memo.

The Justice Department conclusions conflict with the Constitution’s text and previous Obama administration statements, said Senator Charles Grassley of Iowa, the top Republican on the Senate Judiciary Committee.

“The Senate will need to take action to check and balance President Obama’s blatant attempt to circumvent the Senate and the Constitution, a claim of presidential power that the Bush administration refused to make,” Grassley said in a statement.

Obama installed Cordray as head of the Consumer Financial Protection Bureau and appointed three members to the NLRB: Sharon Block, Terence Flynn and Richard Griffin.

Senate Republicans had delayed consideration of Cordray’s nomination and said they opposed him because they believe the bureau’s powers are too broad.

Cordray has agreed to testify before a House Oversight and Government Reform subcommittee on Jan. 24, according to Becca Watkins, a committee spokeswoman.

The U.S. Chamber of Commerce is considering whether to challenge Cordray’s appointment in court, David Hirschmann, president of the group’s Center for Capital Markets Competitiveness, said last week.

--Editors: Justin Blum, Laurie Asseo

To contact the reporter on this story: Seth Stern in Washington at

To contact the editor responsible for this story: Mark Silva at

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