In an opinion dated January 6, the Department of Justice said that recent appointments made by President Obama while the Senate was in pro-forma session were constitutional.
The Constitution permits presidents to make appointments when it is in legislative recess. To block such appointments, the Senate has been staying in pro-forma session, with some sessions lasting just a few minutes or seconds per day.
In a Justice Department memo, Virginia A. Seitz, the assistant attorney general for the Office of Legal Counsel, wrote that these pro-forma sessions were not legitimate sessions and could not be used to justify blocking recess appointments.
According to a separate Congressional Research Service report about the president’s recess appointment power:
… the clause was meant to allow the President to maintain the continuity of administrative government through the temporary filling of offices during periods when the Senate was not in session, at which time his nominees could not be considered or confirmed. This interpretation was bolstered by the fact that both houses of Congress had relatively short sessions and long recesses between sessions during the early years of the republic. In fact, until the beginning of the 20th century, Congress was, on average, in session less than half the year. Throughout the history of the republic, Presidents have also sometimes used the recess appointment power for political reasons. For example, recess appointments enable the President to temporarily install an appointee who probably would not be confirmed by the Senate.