A legal opinion:
Who wrote this? Must have been someone in the administration of the evil Kenyan, Mooslim, Marxist, power-grabbing usurper, right? Nope. The co-authors are Stephen Bradbury and John Elwood. Who are they?:
"What's the point of these phony "pro forma sessions"? They serve but one purpose: to prevent the president from exercising his constitutional authority to make recess appointments.
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In addition to the power to make appointments with the advice and consent of the Senate, the president has an auxiliary power under the Constitution "to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." This power to make temporary appointments helps keep a balance between the political branches in our system of divided powers.
The president can use this power to fill a vacancy during any recess between sessions of Congress as well as recesses during sessions of Congress, if they are of substantial length. The creators of the "pro forma sessions" believe that they break substantial recesses... into recesses too short for the president to make such appointments.
[...]
But the Senate cannot constitutionally thwart the president's recess appointment power through pro forma sessions.
Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not "in session for the appointment of officers."
In a 1905 report that the Senate still considers authoritative, the Senate Judiciary Committee recognized that a "Recess of the Senate" occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot "participate as a body in making appointments." The committee cautioned that a "recess" means "something actual, not something fictitious." The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question "is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word 'recess' a technical and not a practical construction, is to disregard substance for form."
The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president's nominations. That means the Senate remains in "recess" for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions."
Who wrote this? Must have been someone in the administration of the evil Kenyan, Mooslim, Marxist, power-grabbing usurper, right? Nope. The co-authors are Stephen Bradbury and John Elwood. Who are they?:
"From 2005 to 2009, Bradbury headed the Office of Legal Counsel in the Justice Department, and Elwood served as deputy assistant attorney general."
I would like to loudly applaud the President for setting this precedent. Any word on if it will hold up in court if someone challenges the authority of the appointment after action taken by him?
Say this guy imposes whatever sanctions are allowable by law on Joe Schmoe, Inc. for violating consumer protection laws. It is my understanding that Joe schmoe, Inc. can then sue in court that the sanctions are null and void because the recess appointment is not legal based on the pro forma session.
To the legal types that frequent the hurricane: Is it possible that the procedural rules of the senate can be ordered to be changed by a court? Is it possible that this recess appointment and all subsequent actions taken by this consumer protection bureau be turned over in court based on a Senate procedural technicality?