Lawsuit over Recess Appointments - Page 2
But the appointments in question here--the three NLRB ones, not the Cordray appointment--don't fit that template. As Laura Meckler and Melanie Trottman as the WSJ note, two of these three appointments were just made, neither having had a single confirmation hearing. So the argument that the appointments were being held up by the Senate is invalid, on its face. As to the last, Traditionally, the party in power (with regard to the Presidency) has three members on the board, the other party has two:
The third, a Republican, was nominated a year ago, but there is little evidence that Democrats pushed for a vote on his nomination, perhaps because installing him without also confirming another Democrat could have given Republicans a majority on the board.
As to the idea that business cannot be conducted in a pro forma session, the Senate passed the payroll tax break extension during such a session. Thus it would seem the White House can only rely on the first argument, that the pro forma session "doesn't count."
And this is a question that can only be decided by the Supreme Court.