President Obama Has All The Legal Authority He Needs To Make Recess Appointments Right Now

As ThinkProgress has chronicled at length, Senate Republicans are engaged in an unprecedented campaign of obstruction against President Obama's nominees. As one prong of this campaign, they forced the Senate to hold brief “pro forma” sessions every three days in an attempt to cut off President Obama’s power to make recess appointments.

As Jonathan Bernstein explains, the basis of this tactic is a nearly 20-year-old DOJ opinion concluding that “a recess must exceed three days to count for the purposes of making recess appointments.” Since that opinion was drafted, however, a higher authority has weighed in on the question and reached the opposite result. In 2004, President Bush recess appointed Judge William Pryor to a seat on the United States Court of Appeals for the Eleventh Circuit. This led to Evans v. Stephens, the only court of appeals opinion to examine how long a recess must last before the president may make a recess appointment. Evans‘ holding unambiguously permits President Obama to make a recess appointment right now:

The challengers have used both history and textual analysis to support their contentions that the ten- or eleven-day break in the Senate’s Session that underlies Judge Pryor’s appointment was not a “Recess” within the meaning of the Recess Appointments Clause. We have considered all of the arguments. But the arguments are not so strong as to persuade us that [President Bush's] interpretation is incorrect. [...] The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.

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