In all the arguments over the meaning of “recess” in the Constitution, little attention is being paid to another fairly mundane word: “session.” Neither word is well defined in the text of the Constitution and is therefore subject to interpretation based on three criteria: House and Senate rules (“Each House may determine the Rules of its Proceedings”, Art. I, Sec. 5,) historical precedent, and in the current situation, politics. President Obama has declared the first two to be inapplicable regarding “recess” in this case and has skipped directly to the politically advantageous interpretation, even ignoring prior interpretations of his own Justice Department. This is obviously shortsighted in a number of ways, but it certainly opens the door to novel interpretations of other words and concepts in the Constitution.
The sentence in the Constitution relating to recess appointments is “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 [emphasis added.]” But what is a “session?” Article I, Section 4 states that “Congress shall assemble at least once in every Year [emphasis added.]” There is nothing to preclude Congress from simply declaring a “session” has ended and another has begun once a year or multiple times, even more than once a day if they so desire. The end of the “next session” would immediately cause the recess appointments to expire, reopening the need for confirmation. This would set up a ridiculous situation where the President could try to declare more recess appointments in the split second after the first recess appointments expire and before the “new” session of Congress begins, but does anyone doubt that this President would take up the challenge?
Granted, without control of both Houses of Congress, the Republicans could not pull off this “gimmick” as the President might say. But if the President survives the November elections while Republicans maintain their majority in the House and take the Senate, the President’s second term could set a new record for (successful) recess appointments: zero.