The Justice Department concluded in a Jan. 6 memo to the White House counsel that the Senate's "pro forma" sessions don't actually interrupt a congressional recess.

Because they don't, the president was entitled to exercise his constitutional power to make recess appointments, the department concluded.

President Obama used that authority last week to name Richard Cordray director of the newly formed Consumer Financial Protection Bureau. He also made additional recess appointments to the National Labor Relations Board.

"The Senate could remove the basis for the president's exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted," says a memo from DOJ's Office of Legal Counsel.

The memo was released today in response to calls for a fuller explanation of the legal basis on which the White House acted.

The question, the Justice Department says, is a practical one: During these pro forma sessions, is the Senate actually able to provide advice and consent to nominations?  Obviously not, the memo says, which makes them a "recess" in name only, and not in substance.

Even so, it says, "the question is a novel one, and the substantial arguments on each side create some litigation risk for such appointments."

U.S. Attorney General Eric Holder today leveled the Obama administration's strongest criticism yet at new voting laws that, for example, require photo ID's at the polls, limit early voting, and restrict periods for registration.

In a speech prepared for delivery at the LBJ Library at the University of Texas in Austin, Holder quoted Rep. John Lewis (D-GA), a longtime civil rights leader, who said recently that voting rights are under attack by "a deliberate and systematic attempt to prevent millions of elderly voters, young voters, students, and minority and low-income voters from exercising their constitutional right to engage in the democratic process." 

What Lewis was talking about, Holder said, was concerns about "some of the state-level voting law changes we’ve seen this legislative season."

The Justice Department is now reviewing some of those new laws. "We will examine the facts, and we will apply the law," Holder said.

"If a state passes a new voting law and meets its burden of showing that the law is not discriminatory, we will follow the law and approve the change. And where a state can’t meet this burden, we will object as part of our obligation" under the Voting Rights Act, he said.

That law, Holder said, is being challenged in at least five lawsuits. And the U.S. Supreme Court recently expressed the view that the time may be ending when close review by the Justice Department is required for changes in voting procedures in states with a history of racial discriminating at the polls. Perhaps, some members of the court said, that requirement of the Voting Rights Act is no longer necessary.

"I wish this were the case. The reality is that in jurisdictions across the country, both overt and subtle forms of discrimination remain all too common," Holder said.

He called the recent effort at congressional and legislative redistricting in Texas "precisely the kind of discrimination" that the Voting Rights Act was intended to block. The Supreme Court has agreed to review the state's newly drawn districts and a lower federal court's substitution of a different plan. 

New census data showed Texas gaining more than four million new residents, most of them Latinos, allowing the state four new seats in the U.S. House of Representatives. But Texas, Holder said, "proposed adding zero additional seats in which Hispanics would have the electoral opportunity envisioned by the Voting Rights Act.

"As concerns about the protection of this right and the integrity of our election systems become an increasingly prominent part of our national dialogue, we must consider some important questions. It is time to ask: What kind of nation and what kind of people do we want to be? Are we willing to allow this era, our era, to be remembered as the age when our nation’s proud tradition of expanding the franchise ended? Are we willing to allow this time, our time, to be recorded in history as the age when the long-held belief that, in this country, every citizen has the chance and the right to help shape their government, became a relic of our past, instead of a guidepost for our future?

The Justice Department has sent a letter to dozens of local law enforcement agencies in Alabama that receive federal money, warning them that they risk losing that funding if they're not careful in how they enforce Alabama's tough new immigration law.

The Obama administration has already sued the state, claiming the law is unconstitutional. Now it's keeping the pressure on by addressing how the law is carried out.

In an unusual letter, the assistant attorney general for civil rights writes to 156 Alabama sheriff's offices and police departments, telling them that the federal government is monitoring how they enforce the part of the law that requires checking the immigration status of people who are stopped for questioning.

It is critical, says Thomas Perez, that local law agencies "ensure that your enforcement of this law does not result in unlawful stopping, questioning, searching, detaining, or arresting" in violation of the Constitution "or targeting of racial and ethnic minorities."

Other states have passed similar laws, but they've been blocked by federal courts. The part of Alabama's law that requires checking immigration status, however, was allowed to go into effect by a federal judge.

Taking up its most important case in more than a decade, the U.S. Supreme Court has agreed to hear the legal challenges to the Obama health-care law.

The White House welcomes the court's decision, NBC's Shawna Thomas reports.

"We are pleased the Court has agreed to hear this case," said White House spokesman Dan Pfeiffer in a Tweet. "We know the ACA [Affordable Care Act] is constitutional and are confident the Supreme Court will agree."

In a longer statement put out by the White House, Pfeiffer said, "Earlier this year, the Obama Administration asked the Supreme Court to consider legal challenges to the health reform law and we are pleased the Court has agreed to hear this case. Thanks to the Affordable Care Act, one million more young Americans have health insurance, women are getting mammograms and preventive services without paying an extra penny out of their own pocket and insurance companies have to spend more of your premiums on health care instead of advertising and bonuses. We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree."

The Supreme Court is setting aside a remarkable five-and-a-half hours for oral argument on the health care cases. It has yet to set a date for these historic arguments, though they will likely come in late February or early March.

The time breakdown is as follows:

- 2 hours on the "individual mandate," the requirement that virtually all Americans buy health insurance

- 1.5 hours on whether, if the mandate is unconstitutional, the rest of the law still stands, or whether it must fall as well

- 1 hour on the law's new Medicaid requirements on the states

- 1 hour on whether the courts can hear challenges to the law now, or whether they must wait until the mandate actually takes effect in 2014.

The Justice Department is asking a federal court to stop enforcement of parts of South Carolina's new immigration law, bringing to three the number of states the Obama administration is suing over immigration crackdowns.

The government earlier this year challenged Alabama's new law. And we're waiting to see if the Supreme Court takes up the challenge to the Arizona law.

The Justice Department action, filed Monday in federal court in Charleston, is directed at parts of the new South Carolina law that, for example:

-require police to determine immigration status during any lawful stop, detention, investigation, or arrest by the where there is "reasonable suspicion" that an individual is unlawfully present,

-allow state residents to sue any local government agency that moves to limit enforcement of state immigration laws,

-and create a new state crime of "allowing oneself to be transported" for the purpose of harboring someone here illegally or concealing a person's immigration status.

"By pursuing retribution and ignoring every other objective embodied in the federal immigration system (including the federal government's prioritization of the removal of criminal aliens)," the Justice Department said, the South Carolina law "conflicts with and otherwise stands as an obstacle to Congress's demand for sufficient flexibility in the enforcement of federal immigration law to accommodate the competing interests of immigration control, national security and public safety, humanitarian concerns, and foreign relations."

The U.S. Supreme Court could decide as early as two weeks from now whether to take up the titanic legal battle over President Obama's health care law.

The court revealed today that the first of the challenges to reach the Supreme Court will come before the justices on Nov. 10th, during one of their regular weekly conferences where they decide, in private, which cases to hear. Legal experts are nearly unanimous in believing that the court will agree to hear the health-care issue during its current term, but there's no deadline for the justices to act on whether to do so. If the court agrees in November to take up the health care issue, it would probably be argued in March, with a decision by late June. 

If the court agrees on Nov. 10th to take any or all of the cases, we could hear that day, or we might hear the following Monday when court orders are typically announced. But contentious cases are often discussed several times before the court gets around to taking a vote on whether to grant them, so it could take a few weeks before we know.

The five cases ready for the justices to consider ask the court to decide these questions:

- Did Congress exceed its powers in requiring that virtually all Americans buy health insurance, and, if it did, must the entire health care law fall or can parts of it survive?

- Can a challenge to the insurance requirement be brought now, before the law goes into effect in 2014?

- Do new Medicaid requirements in the law impose excessive burdens on the states?

Senate Democrats have scheduled a committee vote on a bill to repeal DOMA -- the federal Defense of Marriage Act -- as a federal appeals court moves toward taking up legal challenges to the law.

Patrick Leahy of Vermont, chairman of the Senate Judiciary Committee, said Tuesday the committee will begin debate Nov. 3rd on the Respect for Marriage Act, introduced in March by Sen. Diane Feinstein (D-CA). It would repeal DOMA, signed into law by President Clinton, which defines marriage, for federal purposes, as a relationship between a man and a woman.

A committee vote could happen Nov. 3rd, but is more likely a week later. All 10 committee Democrats support repeal of DOMA, but the bill's prospects are less certain in the full Senate. It faces virtually certain defeat in the Republican-controlled House.

House Republicans earlier this year authorized hiring a law firm to defend DOMA against two court challenges, after the Obama administration announced it had concluded that the law was unconstitutional and would therefore no longer defend it in court, even though the administration would continue to enforce it.

Both lawsuits, one filed by the state of Massachusetts, are pending before a federal appeals court, which has notified the parties that a panel of three judges will hear oral argument on the legal challenges in January, though the exact date has not yet been set.  A decision would not be expected for several more months, making it impossible to seek review in the U.S. Supreme Court before the court's current term ends in late June.

A repeal of DOMA would not force states to permit same-sex marriage but would require the federal government to recognize such marriages in states where they are legal. 

Is it legal for the federal government to kill a U.S. citizen overseas, someone who has never been charged or convicted of a crime? Civil liberties groups are condemning the killing of Anwar al-Awlaki, but many legal scholars say it is fully justified.

No U.S. court has ever weighed in on the question, because judges consider these sorts of issues exclusively matters for the president. 

Anwar al-Awlaki's father, Nasser, with the help of the ACLU, sued President Obama, Defense Secretary Robert Gates, and CIA Director Leon Panetta a year ago, when it became clear that the U.S. was targeting al-Awlaki. But Judge John Bates threw the case out, ruling that federal courts were in no position to evaluate whether someone was a terrorist whose activities threatened national security and against whom deadly force could be justified.

The ACLU lawyer who handled the case, Jameel Jaffer, said Friday the killing of al-Awlaki was a violation of both U.S. and international law.

"The government's authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific and imminent," Jaffer said. "It is a mistake to invest the president, any president, with the unreviewable power to kill any American whom he deems to present a threat to the country."

But Kenneth Anderson, an international law scholar at American University's Washington College of Law, said U.S. citizens, who take up arms with an enemy force, have been considered legitimate targets through two world wars, even if they are outside what is traditionally considered the battlefield.

"Where hostiles go, there is the possibility of hostilities," Anderson said. "The U.S. has never accepted the proposition that if you leave the active battlefield, suddenly you are no longer targetable."

Robert Chesney, an expert on international law at the University of Texas School of law, concluded in a recently written law review article that al-Awlaki could be legally killed "if he is in fact an operational leader within AQAP, as this role would render him a functional combatant in an organized armed group."

Further making it likely the U.S. Supreme Court will take up the health-care case this term, the Justice Department says it will urge the court to take an appeal of the challenge brought by Florida and 26 other states.

"The Department has consistently and successfully defended this law in several court of appeals, and only the 11th Circuit Court of Appeals has ruled it unconstitutional. We believe the question is appropriate for review by the Supreme Court," the Justice Department says in a statement. 

"Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed. We believe the challenges to Affordable Care Act -- like the one in the 11th Circuit -- will also ultimately fail and that the Supreme Court will uphold the law," it says.

White House adviser Stephanie Cutter writes a lengthy blog post on the White House website, defending the decision, entitled, "Obama Administration Asks Supreme Court to Hear Health Care Lawsuit."

"There has been no shortage of lawsuits regarding the Affordable Care Act," Cutter writes. "Of course, whenever our nation is undertaking fundamental reform, legal challenges like this are nothing new. Just as challenges to the Social Security Act, the Civil Rights Act, and the Voting Rights Act all failed, challenges to health reform are failing as well. ... We know the Affordable Care Act is constitutional.  We are confident the Supreme Court will agree."

Opening up a new front in its legal battles with the Obama administration, the state of Arizona on Thursday challenged the federal Voting Rights Act, prompting a swift response from Attorney General Eric Holder.

"The Voting Rights Act plays a vital role in our society by ensuring that every American has the right to vote and to have that vote counted,” Holder said. “The Department of Justice will vigorously defend the constitutionality of the Voting Rights Act in this case, as it has done successfully in the past.”

Arizona is challenging the law's requirement that the state seek Justice Department approval for any changes in how elections are conducted. Many states are subject to the law's pre-clearance requirement, generally to remedy past restrictions that discouraged minority voting.

"Arizona is still penalized for archaic violations that were corrected with the implementation of bilingual ballots prior to the 1974 elections," said the state's Attorney General Tom Horne.  He noted that in 1974, Arizona became the second state to elect a Hispanic governor.

The Voting Rights Act is unconstitutional, Horne said, "because it suspends all changes to state election law, however innocuous, until pre-clearance is given by the federal government."

The state objects to the requirement that it seek federal approval to dissolve school districts that have no students and annex them to adjoining districts. Such a change would eliminate elected school board positions from the dissolved districts.

"A statute as innocuous as this has to go through an approval process with the Justice Department,” reads the state’s lawsuit, filed Thursday in federal court in Washington, DC. “Such laws cannot be justified by any power delegated to the federal government by the Constitution.”

Vowing to fight the challenge, Holder said the provisions challenged in this case, including the pre-clearance requirement, "were reauthorized by Congress in 2006 with overwhelming and bipartisan support,” he said. “The Justice Department will continue to enforce the Voting Rights Act, including each of the provisions challenged today.”

In his first public comment on last week's federal court ruling that declared the centerpiece of the health care law unconstitutional, President Obama today defended the law as good public policy but sidestepped, or chose to ignore, the legal issues at the core of the decision.

"It should not be controversial, but it has become controversial," the president said at a stop in Cannon Falls, MN.

"You've got a governor who's running for president right now who instituted the exact same thing in Massachusetts. This used to be a Republican idea, by the way, this whole idea of the individual mandate, and suddenly, it's like they got amnesia," he said, in a reference to Mitt Romney, the former Massachusetts governor.

But in invalidating the requirement that virtually all Americans buy health insurance, the 11th Circuit Court of Appeals explicitly noted that the Constitution gives states much broader powers than the federal government to regulate health care.

The health care industry "falls within the sphere of traditional state regulation," last Friday's ruling said.

"A state's role in safeguarding the health of its citizens is a quintessential component of its sovereign powers. The Supreme Court has declared that the 'structure and limitations of federalism ... allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons,'" the court said, quoting from a 2006 US Supreme Court decision on the limits of Congressional power.

Obama also said the individual insurance mandate is essential to the other features of his health-care reform plan.

"You can't not have health insurance, then go to the emergency room, and each of us, who've done the responsible thing and have health insurance, suddenly we now have to pay the premiums for you. That's not fair," he said.

It may not be fair, but that doesn't make the individual mandate constitutional, last week's appeals court ruling said.

Under the Obama administration's theory, the court said, "There is no reason why Congress could not similarly compel Americans to insure against any number of unforeseeable but serious risks. High costs and cost-shifting in premiums are simply not limited to hospital care, but occur when individuals are disabled, cannot work, experience an accident, need nursing care, die, and myriad other insurance-related contingencies."

The only other federal appeals court to consider the constitutionality of the health-care law came to the opposite conclusion. The Sixth Circuit Court of Appeals upheld the individual mandate in late June.

The losing sides in both cases could ask the full appeals courts to take up the question, or they could go directly to the U.S. Supreme Court.

The Justice Department today brought a legal challenge to Alabama's tough new immigration law, opening up a new front in the battle between states and the Obama administration over immigration enforcement.

The Alabama law goes even further than the Arizona law that sparked an earlier lawsuit from the government now working its way through the courts.

"Alabama's law is designed to affect virtually every aspect of an unauthorized immigrant's daily life, from employment to housing to transportation to entering into and enforcing contracts to going to school," the Justice Department said in filing today's lawsuit.

The law makes it a state crime to be in the U.S. illegally. And it goes much further than Arizona's law does in expanding opportunities for police to put immigrants in jail.

Just today, state officials said the new law will not prevent any child -- including illegal immigrants -- from enrolling in Alabama's public schools. Even so, all schools are required to keep records on the number of children of undocumented workers in school, and civil rights groups have said these requirements are so intimidating that many parents may simply decline to enroll their children.

The state law makes it a crime for an undocumented immigrant to try to find work or attempt to interact with state or local government. It also forbids landlords to rent to anyone here illegally, and it bans state courts from honoring contracts to which illegal immigrants are a party.

The Justice Department is also considering whether to sue Indiana, Georgia, South Carolina, and Utah over their tough new immigration laws. "To the extent that we find these laws interfere with the federal government's enforcement of immigration law, we will take the appropriate legal action," said Tony West, the Assistant Attorney General in charge of the department's civil division.

Enforcement of the laws in Georgia, Indiana, and Utah have been blocked by preliminary court decisions. South Carolina's law doesn't go into effect until next year.