John C. Eastman, a professor at Chapman University School of Law who is an expert on the constitutional separation of powers, says that the White House simply ignored the section of the Constitution, which governs when Congress can adjourn, when President Obama claimed to use the "recess" appointment power on Wednesday to name a director to the Consumer Finance Protection Bureau and three members to the National Labor Relations Board.
Eastman says that under the terms of the Constitution Congress was not in recess this week, it was in session.
“They’re ignoring that the recess clause was designed to fill vacancies that occurred during the recess. These did not," said Eastman. "They are ignoring entirely Section 5, Article 1. The Senate doesn’t have the authority to recess without the House’s approval even if they wanted to. So Carney’s claim that this is just a gimmick completely ignores that the House didn’t authorize them to leave at all.”
Article 1, Section 5, Clause 4 of the Constitution says: “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.”
Because the Republican-controlled House did not allow the Senate to adjourn, neither House was in recess.