The Department of Justice offered a defense Thursday for President Obama’s controversial decision to make several recess appointments while Congress was holding pro forma sessions.

In a memo, Justice argued the pro forma sessions held every third day in the Senate do not constitute a functioning body that can render advice and consent on the president’s nominees. It said the president acted consistently under the law by making the appointments.

“Although the Senate will have held pro forma sessions regularly from January 3 to January 23, in our judgment, 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,’” Virginia Seitz, assistant attorney general for the Office of Legal Counsel, wrote in the memo dated Jan. 6.

The Office of Legal Counsel concluded the president has authority to make recess appointments during a recess and that Congress can only prevent the president from making such appointments “by remaining continuously in session and available to receive and act on nominations,” not by holding pro forma sessions.

Republicans, who had set up the pro forma sessions to prevent Obama from making the appointments, are expected to challenge them in court.
Obama used his recess-appointment powers to place Richard Cordray as director of the Consumer Financial Protection Bureau. He also named three people to the National Labor Relations Board.

Seitz offered several points in defense of Obama’s actions.

The memo noted that pro forma sessions typically last only a few seconds and require the presence of only one senator.

CONTINUED at The Hill.