The Obama-OLC opinion cleverly skirted this problem by claiming that the Senate would effectively be in a 20-day intrasession recess from Jan. 3 until Jan. 23, when it was scheduled to resume legislative business. That’s because convening interim pro forma sessions “does not have the legal effect of interrupting an intra-session recess.” Put another way, the five pro forma sessions the Senate held between Jan. 3 and 23 don’t count as sessions because the president says they don’t (the unitary executive lives). That means the five short breaks in between were really just one long recess.
Several things should be noted: 1) Senate Majority Leader Harry Reid (D-Nev.) first instituted the pro forma blocking device in 2007-08 to prevent President George W. Bush from making recess appointments, 2) Reid reportedly did so at the instigation of that staunch defender of the Constitution, Sen. Robert Byrd (D-W.Va.), 3) Bush did not defy the Senate action despite the OLC opinion that he could, 4) this Congress introduced and passed (by voice vote), and the president signed into law, the short-term payroll tax holiday bill, all on the pro forma session day of Dec. 23, 2011, giving lie to the president’s claim that no legislative business is conducted on such days, and 5) the courts have historically upheld Congress’ right to interpret its own rules on such matters.
For any president to pick a fight with Congress over such a delicate issue in an election year may be a clever partisan ploy, but it is both constitutionally dangerous and politically damaging to inter-branch relations and the confirmation process generally.
Don Wolfensberger is a Congressional scholar at the Woodrow Wilson Center, a resident scholar with the Bipartisan Policy Center, and former staff director of the House Rules Committee.