Legal opinions abound about whether President Obama is on solid constitutional ground in making recess appointments while Congress is on what's called an intrasession recess.
Right now, senators are taking a hiatus in this second session of the 112th Congress. But is it a recess? The jury is out on that question.
Republicans certainly think there is no recess, with the chamber using "pro forma" sessions to technically stave off any official break. And Democrats, though praising the president's move Wednesday, have employed this "pro forma" strategy in the past to block recess appointments by President George W. Bush.
So the issue of what constitutes a recess is back in the spotlight.
The Senate has, indeed, conducted business during this intrasession recess (meaning - during the 2nd session).
Senators recently extended the payroll tax holiday and appointed conferees to a payroll tax-related conference.
But the chamber is not in perpetual meeting. Therein lies the problem. And a tug-of-war has ensued, with the executive branch arguing it has the authority because a recess is under way, and congressional Republicans arguing that the president has overstepped his bounds because the chamber is not technically on recess.
The Constitution is really no help here either.
It expressly gives the president through the recess appointments clause the "Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commission which shall expire at the End of their next Session."
But nowhere in the Constitution does it expressly define a recess.
It forbids one house from breaking for longer than three days, unless the other chamber consents (the so-called adjournment clause). But that's not called a "recess" by the Constitution.
Lawmakers have taken it to define a minimum recess, but this is not a settled area of the law, and that's an understatement.
Lawyers for this White House and for past administrations, including most recently with President George W. Bush, have argued that the use of "pro forma" sessions is merely a legislative sham designed to rob the executive branch of its powers.
Two Bush-era lawyers, John Elwood and Steven Bradbury, called such a strategy "phony" in a 2010 Washington Post op-ed, and said, "The president can use this power to fill a vacancy during any recess between sessions of Congress as well as recesses during sessions of Congress, if they are of substantial length."
The two cite a 1905 memo published by the Senate Judiciary Committee in which the panel sought to define a recess, saying one occurs whenever the Senate cannot "participate as a body in making appointments." The committee cautioned that a "recess" means "something actual, not something fictitious."
Meanwhile, the Senate's own legal counsel in the 1990s argued for a much different definition of recess.
In 1993, during a recess appointment controversy under President George H.W. Bush, the chamber's lawyer took apart the appointments clause.
"(T)he word 'recess' is worded in the singular, not the plural," the chamber's lawyer stated, adding, "(T)he Framers specified that the clause applies to 'all Vacancies,' the Framers chose not to state similarly that the Clause applies 'during all Recesses.' The logical inference from their conspicuous avoidance of the word 'all' is that the Framers did not intend the recess appointment power to apply during each and every possible adjournment of the Senate."
The Senate's counsel warned the court that the executive branch, which was arguing at the time that there can be no limits placed on the duration of a recess, was placing an impossible burden on Congress: "Unless the Executive's argument is rejected, no Senate will ever be able to know if it recesses for a weekend or a week, or perhaps even an evening, whether a President will use that break as an opportunity to place an individual into office...(T)he Framers could not have intended to require that the Senate main in perpetual meeting during a session in order to preserve the responsibilities vested in it by the Constitution."
The courts could certainly have the final word here, but that is sure to take quite a bit of time. Better get out that Rubik's Cube...