My point was that Congress was not in recess.
Aren't you the least bit embarrassed that I had to spell it out for you? I thought the context made it obvious. Oh well....
Here's someone with a lot more brains than you
commenting on this topic:
ON Wednesday President Obama, using his power to make recess appointments, named Richard Cordray as the first director of the Consumer Financial Protection Bureau. A few hours later, he used the same power to appoint three new members to the National Labor Relations Board, acting to overcome unprecedented Senate encroachment on his duty to appoint executive officials. The president’s right to do so is clearly stated in the Constitution: the recess appointments clause empowers him 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.”
However, since the twilight years of the George W. Bush administration, the Senate has tried to nullify this power by holding “pro forma” sessions every three days, during what no one doubts would otherwise be an extended recess. In these sham sessions, manifestly serving only to circumvent the recess appointment safety valve, a lone senator gavels the Senate to order, usually for just a few minutes; senators even agree beforehand that no business will be conducted.
It is this transparently obstructionist tactic to which President Obama said “enough,” striking a badly needed blow for checks and balances with strong support both from the text and the original purpose of the recess appointment clause.
Its aims, as Alexander Hamilton wrote in Federalist No. 67, included facilitating appointments “necessary for the public service to fill without delay.” Although the main concern in 1789 involved difficulties of travel that kept a recessed Senate from acting swiftly, the broad imperative retains modern relevance, even when the Senate engineers its own unavailability.
Past practice also points the way. Presidents have long claimed, attorneys general have long affirmed and the Senate has long acquiesced to the president’s authority to make recess appointments during extended breaks within a Senate session. In 1905, the Senate Judiciary Committee concluded that “recess” referred to periods when, “because of its absence,” the Senate could not “participate as a body in making appointments” — a definition that precludes treating pro forma sessions as true breaks in an extended recess.
Since 1867, 12 presidents have made more than 285 such appointments, without constitutional objection by the Senate. And attorneys general going back to Harry M. Daugherty in 1921 have held that the Constitution authorizes such appointments.
This does not free the president to make recess appointments whenever the Senate breaks for lunch or takes routine weekend vacations that conceal no objective scheme to frustrate presidential appointments. Without limits on both sides, he could bypass the Senate’s “advice and consent” role by routinely recess-appointing controversial nominees.
These limits mean the president can resort to recess appointments of this kind only in instances of transparent and intolerable burdens on his authority. Article II charges him to “take care that the laws be faithfully executed”; this duty, combined with appointment and recess-appointment powers, requires an irreducible minimum of presidential authority to appoint officials when the appointments are essential to execute duly enacted statutes.
In this case, the administration’s focus on the gimmicky nature of pro forma sessions is best understood as one among several factors that combine to present unconstitutional interference with the president’s irreducible power and duty.
So I guess it's not the President who's not following the intent of the Constitution?
