The Department of Justice offered a defense Thursday for President Obama’s controversial decision to make several recess appointments while Congress was holding pro forma sessions.

In a memo, Justice argued the pro forma sessions held every third day in the Senate do not constitute a functioning body that can render advice and consent on the president’s nominees. It said the president acted consistently under the law by making the appointments.

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“Although the Senate will have held pro forma sessions regularly from January 3 to 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,’” Virginia Seitz, assistant attorney general for the Office of Legal Counsel, wrote in the memo dated Jan. 6.

The Office of Legal Counsel concluded the president has authority to make recess appointments during a recess and that Congress can only prevent the president from making such appointments “by remaining continuously in session and available to receive and act on nominations,” not by holding pro forma sessions.

Republicans, who had set up the pro forma sessions to prevent Obama from making the appointments, are expected to challenge them in court.

Obama used his recess-appointment powers to place Richard Cordray as director of the Consumer Financial Protection Bureau. He also named three people to the National Labor Relations Board.

White House press secretary Jay Carney said the legal reasoning in the Justice Department's memo is sound.

"We believe our legal argument is very strong and will absolutely pass muster," Carney said, adding that Obama did not make a decision on the recess appointments until the opinion was rendered.

Seitz offered several points in defense of Obama’s recess appoinments.

The memo noted that pro forma sessions typically last only a few seconds and require the presence of only one senator.

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It cited statements from Republican and Democratic senators, including James Inhofe James (Jim) Mountain InhofeOvernight Defense: Appeals court revives House lawsuit against military funding for border wall | Dems push for limits on transferring military gear to police | Lawmakers ask for IG probe into Pentagon's use of COVID-19 funds Democrats push to limit transfer of military-grade gear to police Chamber of Commerce endorses McSally for reelection MORE (R-Okla.), John Thune John Randolph ThuneTrump, GOP aim to complete reshaping of federal judiciary Supreme Court fight pushes Senate toward brink House to vote on resolution affirming peaceful transition of power MORE (R-S.D.) and Patrick Leahy Patrick Joseph LeahyBipartisan representatives demand answers on expired surveillance programs Democrats shoot down talk of expanding Supreme Court Battle over timing complicates Democratic shutdown strategy MORE (D-Vt.), indicating the lawmakers themselves did not consider the cursory sessions as true breaks in the Senate recess.

The memo noted that the Senate’s website does not recognize pro forma sessions as breaking up extended recesses into mini-recesses, as Republicans now argue.

It also notes that messages from the president received during recess are not laid before the Senate or entered into the Congressional Record until the full Senate returns to work, even if pro forma sessions have been convened in the interim.

Sen. Chuck Grassley Charles (Chuck) Ernest GrassleyGOP lawmakers distance themselves from Trump comments on transfer of power The Hill's 12:30 Report: Ginsburg lies in repose Top GOP senators say Hunter Biden's work 'cast a shadow' over Obama Ukraine policy MORE (R-Iowa), who had called on the administration to make the memo public, called Justice's argument "unconvincing" and said it flies in the face of the Constitution.

"This is clearly an escalation in a pattern of contempt for the elected representatives of the American people," Grassley said in a statement. "The Senate will need to take action to check and balance President Obama’s blatant attempt to circumvent the Senate and the Constitution, a claim of presidential power that the Bush Administration refused to make.”

The federal judiciary has shown reluctance to limit the president’s power to make recess appointments.

In 2004, the 11th U.S. Circuit Court of Appeals validated the presidential power and refused to set a minimum length of recess for such appointments to be valid.

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“The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today,” the court ruled in

On Thursday, Tom Donohue, president and CEO of the U.S. Chamber of Commerce, said the business trade association has not made a decision on challenging the recess appointments in court, a sign the administration might have a strong case.

“We are not going to sue today because one has to see what [Cordray] does and what the three new guys at the National Labor Relations Board do,” Donohue said.

“On this one, we’re working our way through it.”

Amie Parnes contributed.

This story was last updated at 2:58 p.m.