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 yesterday.
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 memorandum tracked the arguments made by the White House counsel, Kathryn Ruemmler, on Jan. 4, the day Obama appointed Richard Cordray as director of the new Consumer Financial Protection Bureau and as well as 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 critics 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 that she had previously provided the same legal guidance orally to Ruemmler.
Obama was the first president to make recess appointments under such circumstances, although the tactic by Congress of using such sessions to block recess appointments is also new. It was first used by Senator Harry Reid of Nevada, the Democratic majority leader, in late 2007, to prevent President George W. Bush from making recess appointments.
While Bush did not make any such appointments for the remainder of his term, Seitz’s memorandum cited a previously undisclosed memorandum completed in January 2009 by a Bush administration lawyer in the Office of Legal Counsel, John Elwood, saying she was drawing on his analysis.
After leaving government, Elwood wrote that presidents have the authority to take such a step.
Still, Obama’s recess appointments remain deeply controversial. Senator Mitch McConnell of Kentucky, the Republican leader, denounced the move the day it happened, saying Obama had “arrogantly circumvented the American people’’ and endangered “Congress’s role in providing a check on the excesses of the executive branch.’’’
Eight Republicans on the Senate Judiciary Committee, including its ranking member, Senator Charles Grassley of Iowa, sent a letter on Jan. 5 to Attorney General Eric H. Holder Jr., asking whether the Office of Legal Counsel had been consulted and demanding that any legal conclusions it had reached be released.
Much of the criticism of Obama’s move has been based on the theory that the Senate has in fact been in session every three days, so the recess was only as long as a long weekend.
Traditionally, presidents have not made recess appointments during congressional breaks of fewer than 10 days, so Obama’s move raised the notion that he had established a precedent that, if taken to its logical conclusion, could gut the confirmation process by allowing presidents of either party to make recess appointments whenever the chamber was momentarily empty.
Seitz’s memorandum, however, said that the administration considered the Senate to be on a single long recess of 20 days - from Jan. 3, when its new pro forma session started, to Jan. 23, when members are scheduled to return to Washington and start conducting business again.
Critics of that theory have cited several arguments to bolster the view that the Senate has instead been in a series of shorter, three-day recesses.
For example, Congress has occasionally conducted business in pro forma sessions, including approving a payroll tax cut extension just before Christmas - a step Obama treated as valid because he signed the bill into law.