Obama makes appointments in a way that no previous president has made them
What Is a “Recess”?
Generally, a recess is a break in House or Senate proceedings. Neither chamber may take a break of more than three days without the consent of the other.6 Such consent is usually provided through a concurrent resolution.7 A recess within a session is referred to as an intrasession recess. In recent decades, Congress has typically had 5-11 intrasession recesses of more than three days, usually in conjunction with national holidays. The break between the end of one session and the beginning of the next is referred to as an intersession recess. In recent decades, each Congress has consisted of two 9-12 month sessions separated by an intersession recess. The period between the second session of one Congress and the first session of the following Congress is also an intersession recess.
Recent Presidents have made both intersession and intrasession recess appointments. Intrasession recess appointments were unusual, however, prior to the 1940s, in part because intrasession recesses were less common at that time. Intrasession recess appointments have sometimes provoked controversy in the Senate, and some academic literature also has called their legitimacy into question.8 Legal opinions have also varied on this issue over time. In general, however, recent opinions have supported the President’s use of the recess appointment authority during intrasession recesses.9 Intrasession recess appointments are usually of longer duration than intersession recess appointments. (See below, “How Long Does a Recess Appointment Last?”)
How Long Must the Senate Be in Recess Before a President May Make a Recess Appointment?
The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over time, the Department of Justice has offered differing views on this question, and no settled understanding appears to exist. In 1993, however, a [Clinton] Department of Justice brief implied that the President may make a recess appointment during a recess of more than three days.10 In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. This “Adjournments Clause” provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ....”11 Arguing that the recess during which the appointment at issue in the case was made was of sufficient length, the brief stated:If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate’s ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. ... It might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant. ...
Well so much for past practice. From Fox News:
The U.S. Chamber of Commerce may sue the Obama administration over President Obama's controversial appointment of Richard Cordray to head a controversial consumer financial board, officials from the business group told Fox News on Wednesday after an unprecedented display of executive power that is sure to poison already-strained relations with the GOP.
Chamber spokeswoman Blair Latoff and colleague Bryan Goettel both told Fox News that their understanding is that "we are not ruling it out." However, they said they still "need to understand the specifics of the appointment to determine if a legal challenge is even possible."
The chamber was early in its criticism of the president's move Wednesday to appoint Cordray to chair the Consumer Financial Protection Bureau in a move that invites legal challenge but which administration officials say is perfectly within the president's authority to do. . . .
“I think it's not about the appointee or even about the agency. I think this is a lawless action by the president, the end of a long string of lawless actions. It's banana republic style. The president saying I won't let Congress stop me,' actually. It’s in Constitution that you have to have the Senate approval, the Senate. He can only make recess appointment if the Senate is in recess. It is not in recess," Charles Krauthammer said.