US Justice Dept backs Obama recess appointments

The US Justice Department on Thursday defended President Barack Obama's controversial recess appointments to two agencies, releasing a detailed legal analysis of why the appointments passed constitutional muster.

The legal opinion followed furious complaints from Senate Republicans who accused Obama of trampling the Constitution and sidestepping the Senate confirmation process when he installed a new chief at the US Consumer Financial Protection Bureau and three members of the National Labor Relations Board.

Republicans blocked Obama's nomination of Richard Cordray to head the recently established consumer bureau, which they oppose as an excessive government intrusion on the financial industry. The bureau was set up after the 2008 financial crisis and Democrats argue it is needed to keep tabs on the industry.

The fight over appointments goes back more than a century and has escalated in recent years as more and more nominees have been blocked. Democrats in the Senate first sought to use short breaks to bar then President George W. Bush from making recess appointments and now Republicans have done the same to Obama.

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 constitutional authority to make appointments when the Senate was briefly away.

"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.

A legal cloud has hung over whether the appointments were constitutional because the Senate at the time was holding brief so-called pro forma sessions every three days, which Republicans thought would block Obama from making recess appointments.

The White House had previously argued that the Senate began its holiday break on Dec. 17 and would not be back until Jan. 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.

She also said that the pro forma sessions have lasted only seconds and that the "purpose of these sessions avowedly is not to conduct business," noting that messages to the Senate were not accepted during those meetings.