But here we have President Obama shredding the Constitution to unilaterally declare that Congress is in recess in order to make a recess appointment:
What constitutes a recess? Article I, Section 5 provides "Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days."
The House did not consent to the adjournment of the Senate this year, so there is no recess, and hence no constitutional authority to make recess appointments.
The White House has belatedly trotted out an opinion from the Justice Department's Office of Legal Counsel (headed by a political appointee) saying that the president was justified in considering the Senate in recess, because the sessions it was holding every three days were just pro forma or, in the words of Obama defenders, "gimmicks."
Factually this is flat wrong. At one of those sessions the Senate passed the payroll tax cut extension, an important piece of legislation.
More important, what gives the head of the executive branch the authority to decide whether one house of the legislative branch is conducting serious business? Can the president decide that the quality of Senate debate is so poor on any particular day that he may deem it to be in recess?
The press carries his water by referring to this as a dispute over his "recess appointments" as if there was a recess.
Yes, it is a transparent ploy. But even that notorious Constitution shredder George W. Bush didn't ignore the reality when Democrats refused to go in recess to deny Bush the power to make recess appointments. But liberals no longer care about the Constitution, it seems, having decided that having a reasonably enlightened autocrat running things is fine by them.
If these are the new rules, perhaps the House of Representatives can haul out a legal memo stating that the presidency and vice presidency are effectively "vacant" because of excessive campaigning and that pretending to be governing is just a gimmick. Therefore, the Speaker of the House of Representatives shall be elevated to the presidency pursuant to the line of succession.
I mean, if the president can be the judge of the business of Congress, why can't the legislative branch pass judgment on the executive? If you toss out the rules, you've tossed out the rules. Right? Or is our Constitution just a game of Calvinball now?
