The Recess Appointments

Much has already been written about the validity of President Obama's recess appointments of Richard Cordray and three members of the NLRB.  The question, of course, is whether the Senate is in recess.  The Senate is in pro forma session every three days while the body of the Senate is largely out of Washington.  Of course, prior practice and opinions from the OLC has suggested that an interruption of Senate business for three days, coupled with a pro forma session every third day, is not a recess. At least that was the position taken by the Democratic majority while G.W. Bush was President, though now it has apprently been repudiated by Senator Reid.  There isn't much in the way of useful judicial opinions concerning what constitutes a Senate recess.  The issue, once it comes to the courts (as it likely will) is whether a recess, for purposes of the recess appointment power, is to be treated as a literal suspension of all business for a meaningful period of time or whether the term is to be given a functional meaning.  If the former is applied, the historical practice and the Senate's own statements are to the effect that the Senate is in session, specifically in order to block the President from making recess apointments.  That's what Harry Reid said when G.W. Bush was President.  If the functional approach is embraced, the contention is that the Senate is functionally unavailable to advise and consent (if it thinks it proper to do so) to presidential nominations.  That is probably true, as the Senators are largely scattered around the country, if not the globe.  The problem is confounded by the Constitution's stipulation that recess appointments last until the expiration of the next session of Congress. That made sense when recesses were for long duration; it makes less sense when recesses are short and the Senate can be assembled fairly quickly.  Indeed, one fact to consider in deciding whether the current pro forma meetings make the Senate in session is that Senator Reid used one of those sessions to obtain unanimous consent for the payroll tax bill.  So, the Senate is doing business while these pro forma sessions are taking place, even though it could not reasonably be expected to consider and act upon nominations (unless the Senate wished to do so by unanimous consent, which is surely not plausible).  So, lots to ponder here, and from the Con Law professor's standpoint, I look forward to the debate in the courts.  There is no doubt that parties affected by regulations or actions by the new Consumer Protection agency or by the bulked-up NLRB will challenge the validity of those actions on this ground.