Recess Appointments

[WillK]

Facts

The Senate has been in session, i.e. not on recess.

In my opinion, this whole thing hinges on whether the 30 second activities of Senator Warner, without a quorum of Senators being present, constitute the Senate being in session.

If the Senate is not scheduled to convene for business until the 23rd of this month, sound like a recess to me.  What strikes me as unconstitutional game playing is having one senator show up for 30 seconds, do nothing, and declare a session has occured.   

[WillK]

Congress is well within its constitutional rights to decide what constitutes a recess.

The Senate has declared that it is in recess "with the exception of pro forma sessions" until January 23, 2012, when it will resume a "legislative session".  I question whether "pro forma" sessions are constitutionally actual sessions of the Senate.

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Can the Senate begin a new session, thereby ending its recess, without convening a quorum to do business?

[WillK]

I struck out your qualifier, because the Senate is not in recess

The Senate said it was in recess. See the note at the top of this page: http://www.judiciary.senate.gov/

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According to the Constitution a Quorum is required to do business.

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Here is the Senate rule on Commencement of Daily Sessions --  http://rules.senate.gov/public/index.cfm?p=RuleIV -- that rule was not followed on January 3. 

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Both the filibuster and the "pro forma session" are symptoms of a dysfunctional Congress.

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But the Senate decides its own rules itself and the fillbuster is one of its rules.

[WillK]

the President has no power to decide if the Senate is in recess or not.

The Constitution does give him the power to "adjourn them to such Time as he shall think proper" if there is a "Case of Disagreement between them, with Respect to the Time of Adjournment."   However, I haven't seen any evidence that Obama is going in this direction. 

[WillK]

*NOTE: The Senate is in recess, with the exception of pro forma sessions, until January 23, 2012, when it will resume legislative session.

It's not a three day recess, and you well know that's what I meant.

It was not clear what you meant.  You struck out a portion of my comment that did not mean 3 day recess.     

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The question is not when do they stop meeting, but rather when do they start up again. 

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Just about all of it.  One Senator was present on January 3. He called order, had the clerk read the letter declaring him presiding officer, declared that the second session of the 112th Senate had commenced, then he adjourned. 

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Pro Forma sessions were used during the Bush administration by Democrats.  The Filibuster wasn't the issue then.

[WillK]

I fail to see how it could not have been the filibuster or its bastard cousin, the single-senator hold.

Then you are not knowledgeable about how Pro Forma sessions were used in 2007.

See:  http://www.cbsnews.com/stories/2007/11/16/politics/politico/thecrypt/main3516002.shtml

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The Senate can not vote down a recess appointment.

[WillK]

DOJ gives its reasoning:

http://thehill.com/images/stories/blogs/flooraction/Jan2011/dojrecess.pdf