It would certainly be an extension of presidential power for the chief executive to be able to tell Congress that he can decide when Congress is really sitting and when it isn't.
President Barack Obama made four recess appointments on Wednesday — a move that the Obama administration of 2010 or Senator Obama of 2008 would not approve of.
Wednesday, the president appointed Richard Cordray to be the director of the new Consumer Financial Protection Bureau. He also named Sharon Block, Terence Flynn and Richard Griffin to the National Labor Relations Board.
According to the Congressional Research Service, under the Constitution, the president has the power to fill vacancies in federal departments, agencies, boards and commissions. While generally the president nominates individuals and the Senate confirms them, when the Senate is in recess the president can make a recess appointment without Senate approval.
However, with Wednesday's appointments, the president filled four vacancies while the Senate was holding pro forma sessions, or brief meetings that are held for the purpose of avoiding a recess of more than three days and therefore blocking recess appointments.
The Hill reports that Senate Majority Leader Harry Reid, D-Nev., who previously used pro forma sessions to block recess appointments by President George W. Bush, still supports Obama's actions in ignoring the sessions.
"Republicans have been trying to make an end run around the law by denying this watchdog a leader," Reid said. "I support President Obama's decision."
The new appointments to the NLRB were also supported by labor unions.
"Some Republican members of the Senate have made a determined effort to cripple the NLRB and other government agencies by refusing to act on President Obama's nominees, no matter how qualified," James Callahan, president of the International Union of Operating Engineers, told the Associated Press. "Leaving the NLRB without a quorum would penalize both labor and employers."
The move to bypass the nominating process and ignore the Senate's pro forma sessions has been met by staunch Republican opposition, with leaders calling it a "terrible precedent" and an "attempt to circumvent the Constitution."
"The president's unprecedented decision to attempt to circumvent the Constitution and ignore the law he himself signed is the clearest indication yet that he has abandoned any effort to work in a bipartisan manner to strengthen accountability and oversight of this new government bureaucracy," House Financial Services Committee Chairman Spencer Bachus, R-Ala., said Wednesday. "The greatest threat to our economy right now is uncertainty, and the president just guaranteed there will be even more uncertainty."
"The legislative branch exists as a check and a balance on the executive. By opening this door, the White House is saying it can appoint any person at any time to any position it chooses without the advice and consent of the Senate," Sen. Orrin Hatch, R-Utah, said. "This is not how our republic was designed to function. The American people deserve to be treated with more respect than this White House is affording them with this blatant power grab."
"This recess appointment represents a sharp departure from a long-standing precedent that has limited the president to recess appointments only when the Senate is in a recess of 10 days or longer," Senate Republican Leader Mitch McConnell, R-Ky., said Wednesday. "Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress's role in providing a check on the excesses of the executive branch."
In a speech at Shaker Heights High School in Ohio, the president said he has an obligation to make appointments like Cordray's when Congress won't act.
"When Congress refuses to act, and as a result, hurts our economy and puts our people at risk, then I have an obligation as president to do what I can without them," Obama said. "I'm not going to stand by while a minority in the Senate puts party ideology ahead of the people that we were elected to serve."
Although the White House argues that pro forma sessions are not legitimate and therefore the appointments are legal, the move swings in the face of past precedent — including precedent set by the administration itself.
In 2010, then-Deputy Solicitor General Neal Katyal told the Supreme Court that recess appointments could be used to make appointments, but only during an actual recess.
"The recess appointment power can work in a recess," Katyal said. "Our office has opined the recess has to be longer than three days."
In 2008, Democrats touted pro forma sessions as a way to keep President Bush from making recess appointments.
"I'm willing to do it," Sen. Sherrod Brown, D-Ohio, told the Associated Press at the time. "We're not going to let them get away with that kind of abuse of power."
"A president has the power to make a recess appointment, and we've supported Mr. Obama's right to do so. The Constitutional catch is that Congress must be in recess" the Wall Street Journal said in an editorial. "Some lawyers we respect argue that a pro forma session isn't a real Congressional session, and that's certainly worth debating. But that isn't the view that Mr. Reid or then Senator Obama took in 2007-08, and it would certainly be an extension of presidential power for the chief executive to be able to tell Congress that he can decide when Congress is really sitting and when it isn't."
John Yoo, writing at Ricochet, says that even with his broad view of executive power, he believes each branch of government has control over its own functions.
"Here, as I understand it, the Senate is not officially in adjournment (they have held "pro forma" meetings, where little to no business occurs, to prevent Obama from making exactly such appointments)," Yoo writes. "So there is no question whether the adjournment has become a constitutional "recess." Rather, Obama is claiming the right to decide whether a session of Congress is in fact a "real" one based, I suppose, on whether he sees any business going on."
Timothy Noah at The New Republic writes that the trouble with the definition of "recess" being used by White House lawyers is that it could be used to define a Senate recess as "just about every weekend of the year."
"The White House maintains that keeping the Senate in pro forma session is a stupid gimmick, which is certainly true. It further maintains that because it is a stupid gimmick, that gives the president the right to act as though the Senate were in recess. That's the part I have trouble following," Noah writes. "Maybe there's a stronger legal foundation to the president's decision that I don't know about. But based on what I've seen so far, I'm having trouble understanding how the recess appointment of Cordray can possibly withstand a legal challenge."
In an article at the the Cato Institute, the think tank points out that a recess appointment of Cordray doesn't even solve the president's problem, due to specific language in the Dodd-Frank Act itself, which states that the authorities under the Act remain with the treasury secretary until the director is "confirmed by the Senate."