That’s what three judges of the U.S. Court of Appeals for the District of Columbia said Friday. The president has constitutional egg on his face because the judges have blocked his appointments of three NRLB members on Jan. 4, 2012. The president said that on that day, the Senate was in recess, which meant he could exercise his authority to make a recess appointment. But the Senate claimed that it was not in recess at all. Never mind that its members were off on a 20-day holiday. The Republican minority took care during that time to gavel the Senate in and out, every few days, for what Obama called “pro forma” sessions. And that, staunch conservative Judge David B. Sentelle says for himself, and two other judges who also happen to be Republican appointees, is enough to beat the president at the game of declaring recess.
Or perhaps I should say only the recess. What we’re looking at here is this clause from Article II of the Constitution:
The President shall have Power 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.
As Sentelle framed it, “the Recess” cannot ever mean anything like “a recess.” “This is not an insignificant distinction,” he writes. “In the end it makes all the difference.” The Framers were not talking about “a generic break in the proceedings,” Sentelle continues, “Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in ‘the Recess.’ ” The upshot is that if the opposing party minority says the Senate is in session, then it does not matter where the flock has fled, or even for how long. Minority Leader Mitch McConnell, essentially, gets to decide when the Senate is open or shut, with whatever fiction he wants.
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