In the end it probably won’t matter since King Obama is above the law. You see, if Bush or another Republican did this there would be media outrage and Democrats would be freaking out. But their man can apparently do whatever he wants and face no consequences.
“It’s untested ground. If I were a judge, I could write out an opinion either way. There’s no clear precedent,” said Charles Fried, a constitutional expert at Harvard Law School who served as solicitor general under former President Reagan.
The Justice Department has argued that the pro forma sessions the Senate has held since Dec. 17 do not constitute genuine sessions of work and that the upper chamber has been, for all practical purposes, on vacation.
But Fried, who has sided with the Obama administration on challenges to the constitutionality of healthcare reform, said courts might not be willing to judge what qualifies as working sessions of the Senate, especially considering how much time the chamber spends on quorum calls lately.
“A court might very well say that we don’t want to start saying something the Senate calls a session is not a real session because not a lot of senators are around,” Fried said. “One might say that this whole year is one which is not a real session.”
Fried added that it is well-established that the president has power to make recess appointments, but it is not clear at all whether the two-day gap between pro forma sessions counts as a real recess.
Business groups can point to an amicus brief the late Sen. Edward Kennedy (D-Mass.) filed with the 11th U.S. Circuit Court of Appeals in 2004 challenging then-President George W. Bush’s recess appointment of Judge William Pryor Jr. to that court.
Kennedy argued that a 10-day recess the Senate took for Presidents Day did not amount to a constitutionally valid recess that would allow Bush to make a recess court appointment.
“The appointment of Judge Pryor is unconstitutional. An intra-session adjournment is not ‘the Recess’ to which the Recess Appointments Clause refers,” Kennedy wrote.
That was then, this is the SCOAMF.