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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.
In any event, the president's reliance upon unconstitutional means to “appoint” Cordray was ironically appropriate, because Cordray will in turn carry out unconstitutional duties.
Originally posted by Shoonra
The recess appointment provision in the US Constitution (Art. II, sec. 2, cl. 3) was intended to assure the government's continued ability to function even when the Senate was unavailable (see Federal essay 67).
In the meantime, the Senate Republicans have tried to cripple the government by refusing to vote on numerous judicial and executive appointments.
Can the Republicans prevent the President from exercising his authority by simply avoiding using the word recess?
The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.