From the Washington Post:
President Obama’s decision to issue recent recess appointments
is constitutional, because recent pro forma sessions of the U.S. Senate
— some lasting just a few seconds — didn’t constitute legitimate
sessions that could block such appointments, the Justice Department said
in a memo released Thursday.
Congressional Republicans have assailed Obama’s decision to issue recess appointments last week of Richard Cordray to lead the new Consumer Financial Protection Bureau and of three nominees to serve on the National Labor Relations Board. Several GOP lawmakers criticized the move as disregarding the history and legality of Senate procedure.
In a 23-page memo dated Jan. 6,
Virginia A. Seitz, the assistant attorney general for the Office of
Legal Counsel, wrote that although the Senate held pro forma sessions
from Jan. 3 to Jan. 23, “those sessions do not interrupt the
intrasession recess in a manner that would preclude the President from
determining that the Senate remains unavailable throughout to ‘receive
communications from the President or participate as a body in making
appointments.’ ”
It all depends on what the word "session" means. This could make for a good written assignment.
