I have now had the chance to read the Justice department memo from the Office of Legal Counsel explaining (after the president had already made his controversial recess appointments) why they’re kosher. The memo makes an excellent case that Senate Republicans are a bunch of jerks and that their actions are unconstitutional. It makes a less excellent case that the president's actions are therefore constitutional. It addresses not at all the question "What if the president decides the Senate is in recess every weekend of the year? Can he make recess appointments then? If so, why send nominations to the Senate at all?"
The brief also, at the end, acknowledges a letter from (then-Solicitor General) Elena Kagan that strikes me as problematic for the White House's case.
Here is the OLC's argument as my untrained legal mind can make it out:
1.) House and Senate Republicans have been explicit in their intent to manipulate the Senate calendar to prevent President Obama from making any recess appointments. Indeed, Sen. David Vitter, R.-La., issued a press release about it in May, and Rep. Jeff Landry issued one in June. “The next logical step in our efforts to restore the public’s trust in their government,” wrote Landry and Rep. Austin Scott in a June 15 letter to House Speaker John Boehner, “is to prevent further recess appointments.”
2.) In various public statements various Republican senators have referred to the Senate’s long break periods during which the Senate remained technically in session in order to block any recess appointments (by punctuating three-day adjournments with pro forma sessions at which no Senate business occurs) as … “recesses.” Whoops!
3.) For Christ’s sake, they went out on Dec. 17 and they aren’t coming back until Jan. 23. (“We have little doubt that a twenty-day recess may give rise to presidential authority to make recess appointments.”)
4.) The Constitution speaks only of the president’s power to make recess appointments during recesses between congressional sessions. These are known as “intersession recesses.” But “intrasession recesses” like those in summer and during the winter holidays have been used repeatedly by presidents to make recess appointments. Precedent and some court decisions support this. This part of the memo is entirely uncontroversial.
5.) The Senate, by playing infantile games with recesses to prevent recess appointments, is violating the Constitution, which explicitly grants the president the power to make recess appointments. (“Allowing the Senate to prevent the President from exercising his authority under the Recess Appointments Clause by holding pro forma sessions would be inconsistent with both the purpose of the Clause and historical practice in analogous situations.”)
6.) The Supreme Court doesn’t allow such monkey business. It “has held [in Morrison v. Olson, 1988] that congressional action is invalid if it ‘undermine[s]’ the powers of the Executive Branch, or ‘disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.’”
7.) Granted, pro forma sessions are not a new phenomenon. Long before they were used to prevent recess appointments (first by Democrats during the Bush administration, now by Republicans during the Obama administration) they were used for various boring parliamentary purposes. Nobody's knickers got into a twist about it.
8.) Granted, the Constitution gives the Senate power to “determine the Rules of its Proceedings.” That has long been understood to grant the Senate “broad discretion in managing their internal affairs.”
9.) But the Supreme Court says (in various decisions) that this latitude is not unlimited if it “affects interests outside of the Legislative Branch.”
10.) Granted, twice in the past year Congress passed legislation by unanimous consent during pro forma non-recess “recesses.”
11.) Granted, there’s this, uh, 2010 letter to the clerk of the Supreme Court by Solicitor General (now Supreme Court Justice) Elena Kagan that, um, kind of says the opposite of everything we've been saying here. But really, it’s different. The memo then goes on to explain how it’s different but I honestly can’t follow what the OLC is saying here. The fact that the Kagan reference doesn’t come until the very end of the brief makes me think the OLC is trying to bury it.
12.) So in conclusion: The president can too make recess appointments during these three-day adjournments strung together like Arapaho beads (to borrow a simile often used by Tom Wolfe). Because they are in fact recesses. Because we say so.