Barack Obama, in his press briefing after the Senate defeated by filibuster the Richard Cordray nomination today, threatened a recess appointment. My work on this is apparently not done, because Dave Weigel -- who is an excellent reporter -- then tweeted: "What recess does Obama think Congress is going to have, exactly? House ain't gonna play along."
So, time for a quick review of the basics (detailed info here). The problem is that the House is refusing to go into extended recess, using pro forma sessions to prevent a recess longer than three days -- and by the Constitution, the Senate cannot recess for more than three days if the House is in session. However, there are at least three options that the president could use if he wants to move ahead anyway, all of which appear to be legal and Constitutional, although no doubt he'd provoke a controversy if he used any of them. Of course, as I'm going to say over at Greg's place later, the real controversy is the current GOP use of the filibuster...at any rate, here are his options:
1. Make a recess appointment during a short recess. The three-day minimum for a recess to "count" for purposes of recess appointments is based on an old Justice Department legal opinion; it's not clear whether that opinion would hold for House-enforced non-recess recesses, and at any rate it is not binding. Presidents shouldn't ignore Justice Department legal opinions without good reason, but in my view there is ample reason to do so here.
2. Invoke the Article II power of the president to resolve differences between the House and Senate over recesses in the Senate's favor. This appears to be an untested and unused presidential power, but the plain meaning of the text seem to support a potential presidential role, either for intrasession recesses or, as would be the case now, for end of session adjournment.
3. Wait until between the 1st and 2nd sessions of the 112th Congress, which will be no later than the first week of January. There's precedent for making recess appointments during that window, no matter how small the duration.
So if Obama really wants recess appointments, and is willing to live through whatever fuss will be made over accusations of procedural infractions, he can almost certainly get his nominees through that way.