George Will’s column on October 10, 2012 ridiculed and criticized Obama’s use of recess appointments. As Charlie Savage reported in January, Obama granted recess appointments in January while the Senate was in “pro forma” session. In a pro-forma session, most of the Senate is away from the chamber and one Senator comes back every few days to bang the gavel. Thus, the Senate isn’t truly in recess and recess appointments are not allowed—at least this is what Senate Minority Leader McConnell and George Will seem to argue.
As Will frames the problem, it is one of senatorial or congressional power. The Senate determines when it is and is not in session and the President is acting beyond his powers to make that determination. The framing of the problem here is very reminiscent of Nixon v. US where the Court demurred under the political question doctrine to the Senate regarding the definition of “try” in Article 1 Section 3. “Because the Constitution unambiguously gives the Senate the power to regulate its proceedings, Obama’s opinion that the Senate was not in session when it said it was…has no force or relevance.”
The President’s view, not surprisingly, is very different. It is not an issue of senatorial power, but of presidential power. The Constitution provides the president with the power to fill vacancies during the recesses of Congress (Art. II Sec. II). However, the minority keeps the Senate in “pro forma” session, but there is no quorum present for those sessions and no business is completed. The political maneuver prevents the President from filling vacancies and “taking care” of executing the laws of the nation. Regardless of the ‘banging of the gavel’ by one member every few days, Obama’s White House Counsel suggests, the Senate is not doing business and thus preventing from fulfilling his “constitutional function”. And according to cases like Nixon v. Fitzgerald (1982) and Myers v. US (1926), the president must be able to organize the executive branch as he sees fit to fulfill his constitutional duties.
Would this be a political question or would the Court hear this case to decide if it is an issue of executive or legislative power? For that matter, which is it–an executive or legislative powers question? And how would the justices decide? Based on the Chief Justice’s opinion from the Healthcare cases, he would fall on the side of President Obama. If it acts like a tax it is a tax. So if it acts like a recess, then it is a recess. Or is he more likely to revert to form and interpret the constitution more strictly and defer to the Senate?
 http://www.washingtonpost.com/opinions/george-will-obamas-selective-defense-of-the-constitution/2012/10/10/97139eb8-126c-11e2-ba83-a7a396e6b2a7_story.html (hat tip to Jake Shore for pointing me to Will’s column.)
 Will does note that twice in 2011, legislation was passed during pro forma sessions; however, again there would have been sufficient senators in the chamber to perform business.