WASHINGTON (Reuters) - President Barack Obama was within his constitutional authority when he made recess appointments to two agencies, even though the U.S. Senate was holding periodic pro forma sessions, the Justice Department said in a legal opinion released on Thursday.
The opinion follows furious complaints from Senate Republicans who said Obama sidestepped the Senate confirmation process to install a new chief at the recently established U.S. Consumer Financial Protection Bureau, along with three members of the U.S. National Labor Relations Board.
Republicans had blocked Obama's nomination of Richard Cordray to head the consumer bureau, which they oppose as an excessive government intrusion on the financial industry. The bureau was set up after the 2008 real estate and banking crisis. Democrats say it is needed to keep tabs on the banks.
A legal cloud hangs over whether Obama's appointments were constitutional because the Senate was holding so-called pro forma sessions every three days, which Republicans thought would
prevent the president from making recess appointments.
However, the Justice Department's Office of Legal Counsel, which provides legal advice to the president as well as government agencies, said Obama was within his authority.
"We conclude that while Congress can prevent the president from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess," the opinion said.
The White House has previously argued that the Senate began its holiday break on December 17 and will not be back until January 23, thus enabling Obama to make the recess appointments.
"The Senate as a body does not uniformly appear to consider its recess broken by pre-set pro forma sessions," the 23-page opinion said, authored by Virginia Seitz, assistant attorney general for the Office of Legal Counsel.
The U.S. Chamber of Commerce has been considering challenging the constitutionality of such appointments. Legal experts also said that anyone subject to rules or regulations imposed by the consumer bureau or the labor board could challenge whether they were legal in court.
The opinion was dated January 6, two days after Obama made the appointments, however an administration official said the advice was given orally to the White House before the written opinion.
(Reporting By Jeremy Pelofsky; Editing by Kevin Drawbaugh; Editing by Sandra Maler)
The opinion follows furious complaints from Senate Republicans who said Obama sidestepped the Senate confirmation process to install a new chief at the recently established U.S. Consumer Financial Protection Bureau, along with three members of the U.S. National Labor Relations Board.
Republicans had blocked Obama's nomination of Richard Cordray to head the consumer bureau, which they oppose as an excessive government intrusion on the financial industry. The bureau was set up after the 2008 real estate and banking crisis. Democrats say it is needed to keep tabs on the banks.
A legal cloud hangs over whether Obama's appointments were constitutional because the Senate was holding so-called pro forma sessions every three days, which Republicans thought would
prevent the president from making recess appointments.
However, the Justice Department's Office of Legal Counsel, which provides legal advice to the president as well as government agencies, said Obama was within his authority.
"We conclude that while Congress can prevent the president from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess," the opinion said.
The White House has previously argued that the Senate began its holiday break on December 17 and will not be back until January 23, thus enabling Obama to make the recess appointments.
"The Senate as a body does not uniformly appear to consider its recess broken by pre-set pro forma sessions," the 23-page opinion said, authored by Virginia Seitz, assistant attorney general for the Office of Legal Counsel.
The U.S. Chamber of Commerce has been considering challenging the constitutionality of such appointments. Legal experts also said that anyone subject to rules or regulations imposed by the consumer bureau or the labor board could challenge whether they were legal in court.
The opinion was dated January 6, two days after Obama made the appointments, however an administration official said the advice was given orally to the White House before the written opinion.
(Reporting By Jeremy Pelofsky; Editing by Kevin Drawbaugh; Editing by Sandra Maler)
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