Yesterday, Barack Obama engaged in one of the most unprecedented assaults on the Constitution. He appointed Richard Cordray as the first chief of the Consumer Financial Protection Bureau and named three new members to the National Labor Relations Board, even though the Senate did not approve them and is not in recess. Obama employed absurd casuistry to suggest that the Senate has in fact been in recess for weeks:
Here are the facts: The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised. The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks. In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called “pro forma” sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running. Legal experts agree. In fact, the lawyers who advised President Bush on recess appointments wrote that the Senate cannot use sham “pro forma” sessions to prevent the President from exercising a constitutional power.
You might have been at the golf course on December 23, Mr. President, but here are the real facts. On that day, during a "gimmicky" pro forma session, the House and Senate passed a sweeping tax extenders bill, which granted tax cuts to almost every worker, unemployment benefits to millions of the jobless, and reimbursement payments to hundreds of thousands of healthcare providers. That is much more consequential than a few agency appointments. If Congress can do all that during a "recess," they certainly have the ability to advise and consent on a handful of executive branch nominations.
And if a pro forma session is indeed considered a recess, can we now vitiate the ridiculous two-month extenders package? What if Congress would send you another stimulus bill to sign during a "gimmick" pro-forma session; would you reject it? As you know, Mr. President, many consequential things can occur during those few "seconds."
Update: House Democrats seem to disagree with Obama. They held a press conference calling on Republicans to come back to Washington and join them in working on the conference committee for the extenders package. That's some recess going on there.