The Washington Post

Obama's recess appointments are constitutional, Justice Department says

President Obama’s decision to issue recent recess appointments is constitutional, because recent pro forma sessions of 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 memo released Thursday.

Congressional Republicans have assailed Obama’s decision to issue recess appointments last week of Richard Cordray to lead the new Consumer Financial Protection Bureau and of three nominees to serve on the National Labor Relations Board. Several GOP lawmakers criticized the move as disregarding the history and legality of Senate procedure.

In a 23-page memo dated Jan. 6, Virginia A. Seitz, the assistant attorney general for the Office of Legal Counsel, wrote that although the Senate held pro forma sessions from Jan. 3 to Jan. 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 memo, drafted at the request of the White House, was not released until Thursday because Office of Legal Council opinions are released after a stringent review by Justice officials.

Sen. Charles E. Grassley (Iowa), the ranking Republican on the Senate Judiciary Committee and a leading GOP critic of Obama’s decision, said the opinion altered the separation of powers as described in the Constitution.

The opinion “relies on no Supreme Court decision and many conclusions are unsupported in law or the Constitution,” Grassley said in a statement. He added later that the opinion “flies in the face of more than 90 years of historical practice.”

But the opinion could dampen potential legal challenges to Cordray’s appointment by outside groups. In a speech Thursday, U.S. Chamber of Commerce President Thomas J. Donohue called the recess appointment “deeply disappointing.” The Chamber previously “condemned” the move.

Later, in an interview with Fox Business, Donohue backed away from any legal challenge.

“I’m sure the Department of Justice gave it a very fair look,” he said. “I think there’ll be lawsuits. I’m not sure we’re going to take them.”

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, said he has been a member of his local chamber of commerce for 20 years and had represented the group as a lawyer. He said 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.”

Ed O’Keefe is covering the 2016 presidential campaign, with a focus on Jeb Bush and other Republican candidates. He's covered presidential and congressional politics since 2008. Off the trail, he's covered Capitol Hill, federal agencies and the federal workforce, and spent a brief time covering the war in Iraq.
Ylan Q. Mui is a financial reporter at The Washington Post covering the Federal Reserve and the economy.

The Freddie Gray case

Please provide a valid email address.

You’re all set!

Campaign 2016 Email Updates

Please provide a valid email address.

You’re all set!

Get Zika news by email

Please provide a valid email address.

You’re all set!
Show Comments
The South Carolina GOP primary and the Nevada Democratic caucuses are next on Feb. 20. Get caught up on the race.
Past South Carolina GOP primary winners
South Carolina polling averages
Donald Trump leads in the first state in the South to vote, where he faces rivals Ted Cruz and Marco Rubio.
South Carolina polling averages
The S.C. Democratic primary is Feb. 27. Clinton has a significant lead in the state, whose primary falls one week after the party's Nevada caucuses.
62% 33%
We'll have half a million voters in South Carolina. I can shake a lot of hands, but I can't shake that many.
Sen. Marco Rubio, speaking to a group of reporters about his strategy to regain support after a poor performance in the last debate
Fact Checker
Sanders’s claim that Clinton objected to meeting with ‘our enemies’
Sanders said that Clinton was critical of Obama in 2008 for suggesting meeting with Iran. In fact, Clinton and Obama differed over whether to set preconditions, not about meeting with enemies. Once in office, Obama followed the course suggested by Clinton, abandoning an earlier position as unrealistic.
Pinocchio Pinocchio Pinocchio
The complicated upcoming voting schedule
Feb. 20

Democrats caucus in Nevada; Republicans hold a primary in South Carolina.

Feb. 23

Republicans caucus in Nevada.

Feb. 27

Democrats hold a primary in South Carolina.

Upcoming debates
Feb 13: GOP debate

on CBS News, in South Carolina

Feb. 25: GOP debate

on CNN, in Houston, Texas

March 3: GOP debate

on Fox News, in Detroit, Mich.

Campaign 2016
Where the race stands

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.