Republicans Press Justice Department On Legality Of Recess Appointments

"As Steven Bradbury and John Elwood, two key constituti­onal advisors during the Bush Administra­tion, explained in 2010:



Historical­ly, the recess appointmen­ts clause has been given a practical interpreta­tion. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not “in session for the appointmen­t of officers.” . . . [A 1905 Senate report] cautioned that a “recess” means “something actual, not something fictitious­.” The executive branch has long taken the same common-sen­se view. In 1921, citing opinions of his predecesso­rs dating back to the Monroe administra­tion, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical constructi­on, is to disregard substance for form.”



The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president’­s nomination­s. That means the Senate remains in “recess” for purposes of the recess appointmen­t power, despite the empty formalitie­s of the individual senators who wield the gavel in pro forma sessions."



http://thi­nkprogress­.org/justi­ce/2012/01­/04/397578­/bush-admi­nistration­-legal-adv­isers-said­-obama-can­-recess-ap­point-cord­ray/
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