Some legal experts, including those who have sided with President Obama on other constitutional issues, think there is a good chance the courts could overturn his recent recess appointments.
Legal experts said courts could invalidate Obama’s appointments to the Consumer Financial Protection Bureau (CFPB) and National Labor Relations Board (NLRB) because there is scant precedent on the issue.
“It’s untested ground. If I were a judge, I could write out an opinion either way. There’s no clear precedent,” said Charles Fried, a constitutional expert at Harvard Law School who served as solicitor general under former President Reagan.
The Justice Department has argued that the pro forma sessions the Senate has held since Dec. 17 do not constitute genuine sessions of work and that the upper chamber has been, for all practical purposes, on vacation.
………
Business groups can point to an amicus brief the late Sen. Edward Kennedy (D-Mass.) filed with the 11th U.S. Circuit Court of Appeals in 2004 challenging then-President George W. Bush’s recess appointment of Judge William Pryor Jr. to that court.
Kennedy argued that a 10-day recess the Senate took for Presidents Day did not amount to a constitutionally valid recess that would allow Bush to make a recess court appointment.
The rest is here
Hmmm… I don’t believe the pro-forma nature of the Senate sessions is relevant. Neither the House nor the Senate can recess without permission of the other. Behner has said that the House did not give that permission. So, what the Senate does here is irrelevant. At best, they can be considered AWOL.