The Department of Justice on Thursday announced, in a memo, that President Obama acted consistently under the law by appointing Richard Cordray, to head the new Consumer Financial Protection Bureau, and two individuals to the National Labor Relations Board (NLRB). The DOJ asserted that the pro forma sessions held in the Senate every third day do not constitute a body that is functioning; hence, the Senate, according to the DOJ, was in recess, and, therefore, the president’s appointments during that “recess” are legal.
Virginia Seitz, assistant attorney general for the Office of Legal Counsel, said her office concluded that Congress may only stop these appointments “by remaining continuously in session and available to receive and act on nominations,” not through pro forma sessions.
But, the DOJ memo not only addressed legal issues. It also blamed Republicans for the recent use of pro forma sessions, observing that 20 Senate Republicans and 80 House Republicans asked House Speaker John Boehner to refuse to pass any resolution allowing the Senate to recess or adjourn for more than three days. The hypocrisy in the memo is that Senate Majority Leader Harry Reid (D-Nevada), who previously held pro forma sessions in order to block appointments by President George W. Bush, said that he supported President Obama’s decision to ignore the pro forma sessions in order to push through his appointments.
The DOJ’s memo has already quelled some potential legal challenges to the appointments, perhaps most notably from the U.S. Chamber of Commerce, whose president, Thomas Donohue, went from a condemnation of the appointment of Richard Cordray, to the statement: “I’m sure the Department of Justice gave it a very fair look.”
Not wasting any time, congressional staffers received invitations to attend Thursday’s “Meet and Greet” for the new NLRB appointees. As Heritage.org points out, they wouldn’t have needed a “Meet and Greet” if Senators had become familiar with the candidates during their normal duties and vetting procedures.