The court appears to take the view that no such recess was in place. The opinion essentially stated that a weekend, or short break is not the Recess mentioned in the U.S. Constitution, and as such, the president was in violation of Section 5 of Article 1 of the Constitution that stipulates that a president cannot make appointments without the consent of the Senate. The failed Obama gambit had hoped to apply the section of the Constitution that reads: “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.”
Even if the President is found to have made a legitimate recess appointment, the members appointed still have not been able to be confirmed by the Senate, and as such, remain unconstitutional appointments.
The Washington Post reports on the seriousness of this abuse of office, “is more than an unconstitutional attempt to circumvent the Senate’s advise-and-consent role. It is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.” Crucially, no other president in history has ever tried to force through such alleged “ recess appointments” while Congress is still in session.
As we have noted, the Recess is when Congress (the House and Senate) officially end their session. Since there was not a close to the sessions of either house, there was no recess to be had.
The offenses occurred last year when President Obama opted to bypass Congress and unilaterally appoint three people to seats on the National Labor Relations Board . He also made Richard Cordray head of the new Consumer Financial Protection Bureau (after the Senate blocked action on his nomination). Cordray’s appointment, made on the same date, has been challenged in a separate court case.
Lyndon Larouche has characterized the events as probably the worst violation by any sitting president trying to use a “procedural loophole.”