In justifying the appointments made on Wednesday, Jan. 4, while the Senate was in pro forma session, Obama spokesman Dan Pfeiffer said that the Senate was “effectively” in recess because “no Senate business is conducted.”
“The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks,” Pfeiffer wrote on the White House Web site on Jan. 4. “In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called ‘pro forma’ sessions, which are sessions during which no Senate business is conducted.”
However, the Senate did conduct business during a pro forma session, with Majority Leader Reid leading the unanimous consent proceeding to pass the two-month payroll tax extension.
Reid went to the floor and made the following statement, asking that when the House passed the compromise two-month extension that it be considered as passed in the Senate as well.
“I ask unanimous consent that if the House passes, and sends to the Senate, a bill which is identical to the text which is at the desk,” Reid said Dec. 23, “the bill be considered read three times and passed.”
Obama – claiming the Senate was in recess during a pro forma session – appointed former Ohio Attorney General Richard Cordray to head the controversial Consumer Financial Protection Bureau and filled several other vacancies on the National Labor Relations Board on Wednesday, Jan. 4.
While the president does have the power to make recess appointments, he can only do so when the Senate is actually in recess. In this case, the Senate was not in recess, but was holding pro forma sessions once every three days because they had not gone into formal recess.
Article 2, Section 2 of the Constitution requires presidential appointees to be confirmed by the Senate before they can take office unless the Senate is in recess or if the appointments are to inferior offices that Congress has legally given the president the power to control. When the Senate is in recess, the president can make temporary appointments that last only until the end of the next session of Congress.