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DOJ defends Obama's recess appointments

The US Department of Justice (DOJ) [official website] has defended [text, PDF] the use of recess appointments [CRS backgrounder, PDF] by President Barack Obama [official website]. Obama used recess appointments to install Richard Cordray [WP backgrounder] as director of the Consumer Finance Protection Bureau [official website] and appoint three other individuals to the National Labor Relations Board [official website]. The Recess Appointment Clause [Constitution, Article II, § 2 text] gives the president the "power to fill up all vacancies that may happen during the recess of the Senate." The DOJ's memo argues that although the Senate met between January 3 and 23, the sessions were not sufficient to constitute an interruption of a recess under the Recess Appointment Clause because they were only pro forma sessions that lasted less than a minute and there was no intent to conduct any business. Since the sessions were so short, the memo concludes that "the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments."

Obama has been criticized [Heritage Foundation report] by the right for the recess appointments as an unconstitutional extension of presidential power. Chuck Grassley (R-IA) [official website] stated that Obama's use of recess appointments "ignore[s] more than 90 years of legal precedent" [press release]. Some experts argue that recess appointments have regularly been used by presidents [JURIST op-ed] since George Washington. It is only a relatively recent practice that obstructionists have begun holding perfunctory pro forma sessions every three days while the Senate is on recess in order to block recess appointments. In 2005 then-president George W. Bush [JURIST news archive] used recess appointments to name Alice Fisher to the top post in the DOJ's criminal division, Peter Flory as an Assistant Secretary of Defense and John Bolton [JURIST reports] as US Ambassador to the UN. The US Supreme Court [official website] declined to hear [JURIST report] a case challenging President Bush's use of recess appointments.

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