Yoo Ess Aaa - It's Bananas
|The Recess Appointments Clause of Article II provides that “[t]he 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.” This power unquestionably extends to intersession or sine die recesses, recesses that occur between annual sessions of the Senate. While it less clearly applies to intrasession recesses – recesses within a particular session of the Senate – presidents have historically utilized such a prerogative “if they are of substantial length.” However, the Obama administration was the first to make recess appointments during pro forma sessions of the Senate. Literally meaning “as a matter of form,” these sessions have been employed traditionally as a means to satisfy the Adjournment Clause and more recently as a minority tactic to deliberately prevent recess appointments. In an Office of Legal Counsel memorandum prepared following the NLRB appointments, the government justified its actions on the contention that pro forma sessions, during which a single senator often gavels the session in and out in a manner of minutes without any business being conducted, did not have the legal effect of interrupting the Senate’s recess. In other words, since pro forma sessions do not actually constitute a break in an intrasession recess, the recess was of substantial length to render the appointments valid.|
|The Senate is not in recess.|
According to the Congressional Research Service,
For the purposes of the recess appointment clause, the word “session” refers to the period between the reconvening of the Senate after a sine die adjournment and the next sine die adjournment. The Twentieth Amendment to the Constitution provides that Congress will meet annually on January 3, “unless they shall by law appoint a different day.” Generally, a session of the Senate begins on that day and continues until sine die adjournment, usually in the fall. The Senate could be called back into session after sine die adjournment if certain conditions have been included in the adjournment resolution. Nonetheless, sine die adjournment is generally considered to be the end of the Senate’s session for purposes of the expiration of a recess appointment.
Last edited by Lagrangian on Mar-10-2014 at 05:08