Last week, President Obama, using his power to make recess appointments, appointed Richard Cordray to head the new Consumer Financial Protection Bureau. He also appointed three members to the National Labor Relations Board. Were these appointments in violation of the Constitution's recess appointments clause, which states, "The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session”?
Writing in The Wall Street Journal, Professor Michael McConnell argues that the appointments were unconstitutional:
The Obama administration has offered no considered legal defense for the recess appointments. It even appears that it got no opinion from the Office of Legal Counsel in advance of the action—a sure sign the administration understood it was on shaky legal ground. It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess.
Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office. It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. . . .
Article I, Section 5, Clause 4 requires the concurrence of the other house to any adjournment of more than three days. The Senate did not request, and the House did not agree to, any such adjournment. This means that the Senate was not in adjournment according to the Constitution (let alone in "recess," which requires a longer break).
Others have argued that the president can make recess appointments during any adjournment, however brief, including the three days between pro forma sessions. That cannot be right, because it would allow the president free rein to avoid senatorial advice and consent, which is a major structural feature of the Constitution.
Professor Lawrence Tribe, however, argues in The New York Times that Obama's recess appointments were in fact constitutional:
Presidents have long claimed, attorneys general have long affirmed and the Senate has long acquiesced to the president’s authority to make recess appointments during extended breaks within a Senate session. In 1905, the Senate Judiciary Committee concluded that “recess” referred to periods when, “because of its absence,” the Senate could not “participate as a body in making appointments” — a definition that precludes treating pro forma sessions as true breaks in an extended recess.
Since 1867, 12 presidents have made more than 285 such appointments, without constitutional objection by the Senate. And attorneys general going back to Harry M. Daugherty in 1921 have held that the Constitution authorizes such appointments.
This does not free the president to make recess appointments whenever the Senate breaks for lunch or takes routine weekend vacations that conceal no objective scheme to frustrate presidential appointments. Without limits on both sides, he could bypass the Senate’s “advice and consent” role by routinely recess-appointing controversial nominees.
These limits mean the president can resort to recess appointments of this kind only in instances of transparent and intolerable burdens on his authority.
At the Originalism Blog, Professor Mike Rappaport critiques recess appointments from an originalist perspective. He also provides some history of the recess clause's interpretation that could serve as a reply to Professor Tribe's appeal to prior practice:
The original meaning of the Recess Appointments Clause is well designed to limit recess appointments to situations when the Senate’s recess prevented the appointment. The Clause says that the President “may fill up all Vacancies that may happen during the Recess of the Senate.” As I argue in this paper, this strongly suggests that the vacancy must arise during the recess and the recess appointment must occur during that same recess. The first Attorney General opinion on the subject, written by Edmund Randolph in 1792, adopted this interpretation. When the Congress was in recess for long periods – as long as nine months at a time – this recess appointment power worked quite well. If a vacancy occurred in a needed position, the President filled it quickly.
The first error that was introduced into the law occurred when Attorney General Wirt in 1823 reversed this opinion and concluded that the President “had the power to fill up all Vacancies” during any recess, irrespective of when the vacancy first occurred.
This was bad, but its effect on the law was still limited because the law and practice still mainly restricted recesses to intersession recesses. In 1901, Attorney General Knox wrote an opinion adopting that interpretation. But in 1921, Attorney General Daugherty wrote an opinion, concluding that recesses referred not merely to intersession recesses but also to intrasession recesses, and we were off to the races. Over time, the executive branch has shortened the length of the recess that would allow a recess appointment from 10 - 30 days down to 3, and the President can now freely circumvent the senatorial advice and consent.