President Obama’s recent decision to issue recess appointments is constitutional, because recent pro-forma sessions by the U.S. Senate — some lasting just a few seconds — didn’t constitute legitimate sessions that could block such appointments, the Justice Department said in a legal memo released Thursday.
Obama issued recess appointments last week for Richard Cordray to lead the new Consumer Financial Protection Bureau and for three nominees to serve on the National Labor Relations Board. The move angered congressional Republicans who called the appointments an unprecedented presidential power grab and callous disregard for the history and legality of Senate procedure.
But in a Jan. 6 memo, Virginia A. Seitz, the assistant attorney general for the Office of Legal Counsel, wrote that even though the Senate held pro-form sessions from Jan. 3-23, “those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to ‘receive communications from the President or participate as a body in making appointments.’”
The 23-page memo was drafted at the request of the White House and released publicly for the first time Thursday. The legal arguments mirrored statements made last week by White House aides in defense of the president’s decision.
And though the memo reviewed the legal authority for issuing recess appointments, it also blamed Republicans for the recent use of pro-forma sessions, noting that 20 GOP senators asked House Speaker John A. Boehner (R-Ohio) in May to refuse to pass any resolution allowing the Senate to recess or adjourn for more than three days. Eighty House Republican lawmakers made a similar request the following month, the memo said.
The DOJ opinion could dampen potential legal challenges to Cordray’s appointment by outside groups. At a speech Thursday on the state of American business, U.S. Chamber of Commerce President Thomas Donohue struck a conciliatory tone with the regulator. Though the chamber previously said it “condemned” Cordray’s recess appointment, on Thursday Donohue referred to it as “deeply disappointing” and quickly moved on to other issues. Later, in an interview with Fox Business, he backed away from any legal challenge.
“I’m sure the Department of Justice gave it a very fair look,” Donohue said of the appointment. “I think there’ll be lawsuits. I’m not sure we’re gonna take ‘em.”
During a news conference Thursday, Cordray said he spoke with Donohue on Wednesday and was in “frequent” communication with the chamber. Cordray, the former Ohio attorney general, noted that he has been a member of his local chamber of commerce in Ohio for 20 years and has even represented the group as an attorney in the past. He said that the CFPB could be a boon for law-abiding businesses.
“They should embrace the bureau,” he said. “We are going to support the honest and responsible businesses in the marketplace.”
Cordray’s appointment gives the bureau the authority to oversee not only traditional banks, but also other financial institutions such as mortgage servicers. It has already released its oversight plan for the nonbank industry, and Cordray said he expects to have staff in place within two months. Next week, he will be in Alabama for a community hearing on payday lending.
“I’m going to be very matter-of fact. We have a job to do,” Cordray said. “We are going to walk one step at a time, straight ahead.”
Amid sustained Republican objections to the recess appointments, Cordray agreed Thursday to testify Jan. 24 before a subcommittee of the House Oversight and Government Reform Committee to answer questions on the agency’s plans and the legality of his appointment.
Sen. Charles E. Grassley (R-Iowa), the ranking member on the Senate Judiciary Committee who blasted Obama’s recess appointments, said Thursday that he was unconvinced by the DOJ opinion.
“It flies in the face of more than 90 years of historical practice,” Grassley said in a statement, adding that the move “is clearly an escalation in a pattern of contempt for the elected representatives of the American people.”
And one possible victim of the sour mood caused by the recess appointments? A heretofore innocuous, bipartisan bill that would streamline the Senate confirmation process, according to colleague Emily Heil.
Follow Ed O’Keefe on Twitter: @edatpost