WASHINGTON — The Justice Department issued a critical legal opinion Thursday asserting that President Obama is allowed to make recess appointments despite pro-forma Senate sessions in which no business is conducted, effectively validating the appointment of Richard Cordray to the Consumer Financial Protection Bureau.
But the opinion also said a legal challenge to such appointments was likely — and the outcome uncertain — noting there is little judicial precedence to rely on.
"Due to this limited judicial authority, we cannot predict with certainty how courts will react to challenges of appointments made during intrasession recesses, particularly short ones," the opinion says. "If an official appointed during the current recess takes action that gives rise to a justiciable claim, litigants might challenge the appointment on the ground that the Constitution's reference to 'the recess of the Senate' contemplates only the recess at the end of a session."
Obama made four recess appointments last week, including that of Cordray to head the CFPB. Senate Republicans decried the move as a "power grab," saying the president did not have the right to make such appointments because the Senate was still technically in session. Although the Senate had adjourned in mid-December, it had continued to hold "pro-forma" sessions every three days in which no business was conducted.
In its legal opinion, the Justice Department said that both Republican and Democrat administrations had concluded such sessions don't really count.
"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," the opinion says.
The opinion notes that not even members of the Senate consider the pro-forma sessions as proper sessions of the chamber, noting several press releases and official notes in which lawmakers from both political parties describe the Senate as being on "recess."
It also points to the Senate's Web site, which describes a recess as "a break in House or Senate proceedings of three days or more, excluding Sundays."
Still, the opinion notes there is legal uncertainty around the issue, saying it has rarely been decided before a court of law. When such decisions have been made, however, courts have sided with the president.
"While there is little judicial precedent addressing the President's authority to make intrasession recess appointments, what decisions there are uniformly conclude that the President does have such authority," the opinion states.