Under a “formalist” view, the Senate is in session whenever it says it is in session – even if the chamber is empty most of the time and all the senators are in their home states. If that view is correct, then Mr. Obama’s appointments on Wednesday were constitutionally invalid.And from the White House's own blog, their explanation:
Under a “functional” view, the Senate is in recess if its members are unavailable to perform the tasks the Constitution assigns to them – like deciding whether to consent to the appointment of a presidential nominee.
The administration’s legal team has adopted the second view – thereby freeing Mr. Obama to make the recess appointments. But several legal questions were raised by the move.
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.The Atlantic weighs in. Fox News mentions that the US Chamber of Commerce may sue, as they are against the CFPB in its entirety. This essentially signals an end of pro forma sessions meant explicitly to block the President's Constitutional right to appoint individuals during a recess, if it's upheld.
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