I Don't Think This is Allowed

Our President has determined that he will be the one to determine when the Senate is and is not in recess. According to some document (that Ezra Klein says is very old and confusing) I don't think this is a legitimate move. Here's the relevant part of the Constitution of the United States (Article II, Section 2):

The 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. (emphasis mine)

As a necessary condition for the President to make a "Recess Appointment", the Senate has to...you know...actually be in "Recess". What is "Recess" you ask? No, it's not when Chuck Shumer challenges Marco Rubio to a game of tag outside while Joe Liberman plays on the swing-set. It's actually a defined term. Recess is when the Senate is on break, and they aren't holding sessions. The funny thing is...and you're really going to laugh...is that the Senate isn't in recess right now. The Senate is actually holding pro forma sessions.

pro forma session - A brief meeting (sometimes only several seconds) of the Senate in which no business is conducted. It is held usually to satisfy the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other.

However, the Executive Branch has unilaterally decided that pro forma sessions don't really count, so it's going to simply exercise the power to appoint people as if the Senate were in recess. The problem is that this (1) is simply a violation of the Constitutional power granted to the Executive Branch because the Constitution doesn't say anything about being "essentially" in session or not; and (2) despite the Constitutional problem, it sets an extremely bad precedent. I wouldn't want a conservative President to do something like this over the objection of a Democrat-controlled Senate. It's simply an over-reach by the Executive Branch.

I'm sure that even Dick Cheney is amazed at this expansive view of the Executive's power. However, I bet that the Senate will be too chicken to confront the President on this issue. The Democrats may be the party of evil, but the Republicans are the party of dumb.