Constitutional Law

DOJ Legal Opinion Backs Obama's Recess Appointment Power During 'Pro Forma' Sessions


The president has the authority to make recess appointments during “pro forma” Senate sessions, according to a Justice Department legal opinion released today.

The opinion is dated Jan. 6, two days after President Obama made four controversial recess appointments—that of Richard Cordray to head the new Consumer Financial Protection Agency and three appointees to the National Labor Relations Board. Critics had claimed the appointments were unconstitutional because Senate Republicans had held short sessions over the holidays, establishing that Congress was not in recess.

But the legal opinion (PDF) by the Office of Legal Counsel says pro forma sessions where no business is conducted do not have the legal effect of interrupting a “recess of the Senate” under the recess appointments clause. A contrary interpretation would raise separation of powers concerns, the opinion says.

The Wall Street Journal Law Blog, Reuters and the Volokh Conspiracy covered the legal opinion. “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.

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