Barack Obama’s administration, in defending the recent recess appointments, is attempting to have “pro forma” sessions for Democrats and block it, too.
White House and Department of Justice (DOJ) officials have disputed charges that the president unconstitutionally made recess appointments to the Consumer Financial Protection Bureau (CFPB) and National Labor Relations Board (NLRB) while Republicans kept the Senate in session.
White House Press Secretary Jay Carney told reporters at the Thursday briefing that ranking Republican House Speaker John Boehner acknowledged on his website that the U.S. House of Representatives is out of session.
However, Senate Republicans and conservative critics stated that a small group of senators were holding “pro forma” sessions in which the Senate floor was kept formally opened up for business for a few minutes a day.
Democrats successfully utilized pro forma during President George W. Bush’s tenure to block his appointments. In a stunning reversal, President Obama, a former Democratic senator, is now discrediting the tactic his party created and benefited from.
The Department of Justice released a memo Thursday arguing that pro forma sessions do not constitute a real break in the holiday recess.
“Although the Senate will have held pro forma sessions regularly from January 3 through 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,’” the memo signed by Assistant Attorney Virginia Seitz stated.
Recess appointments are a common occurrence authorized by the Constitution. President George W. Bush reportedly made 171 recess appointments during his two terms in office while Obama has made 28.
However, Democrats successfully used pro forma in 2007 to block President Bush from securing Steven Bradbury as DOJ Office of Legal Counsel assistant attorney general.
Senate Majority Leader Harry Reid (D-Nev.) held pro forma sessions with Senate Democrats in 2007. He, like the president, jumped ship and approved the decision to ignore the Republicans’ pro forma sessions.
Reid explained in a statement, “I had to keep the Senate in pro forma session to block the Bradbury appointment. That necessarily meant no recess appointments could be made."
Yet he supported the move because the GOP was holding up CFPB nominee Richard Cordray. The president also appointed three other officials to the NLRB, two of who had never been questioned by the Senate, Minority Leader Mitch McConnell (R-Ky.) asserted.
The DOJ memo also argued that pro forma were only conducted three days a week, not every day, and lasted for only a few minutes. No business were, nor could be, conducted during the quickie sessions, the DOJ asserted.
However, two senators approved the Senate Federal Aviation Administration bill after both houses of Congress adjourned for summer recess, USA Today reports. The House also worked to pass the two-month payroll tax cut after the Senate left for the year.