Recently, I participated in a Federalist Society Teleforum — a panel presentation conducted through a large conference call (which apparently had nearly 100 audience members) — on President Obama’s recent recess appointments during the Senate’s pro forma session. I focused on the original meaning of the Recess Appointments Clause; Chuck Cooper, my former boss at the Office of Legal Counsel, argued that the Obama Administration’s ignoring of the Senate’s pro forma sessions was impermissible; and Peter Shane and William Yeomans took the opposite side. As with all Federalist Society events, there were diverse viewpoints and a healthy debate.
Michael Stern, who has been blogging on the history of recess appointments, see e.g. here, asked a very perceptive question to the defenders of President Obama’s recess appointment. One problem with the Administration’s position is that they argue that the pro forma sessions may be valid for purposes of some clauses of the Constitution, such as the Three Day Adjournment Clause of Art. I, sec. 5, but not for the Recess Appointment Clause. This is a very troubling view. Stern, however, takes the argument one step further. He notes that President Obama could have made his recess appointment at the end of December rather than at the beginning of January. But that would meant that the recess appointment would have lasted only until Dec. 2012. That he made the appointment 1 week later meant that the appointment, if valid, will last until Dec. 2013. So the Administration chose to make the appointment in January. But in doing so, it was relying on the fact that pro forma session was a valid session! The only reason the new session had begun was that a pro forma session had been held on January 3. So, even for purposes of the Recess Appointments Clause, the Administration had accepted the pro forma session for some purposes, but not for others.
So hats off to Michael Stern for seeing this. And a Brooklyn Cheer for the inconsistency and, yes, lawlessness of the Administration.