"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."According to Aricle 1, Sections 4 and 5, both houses must meet in session at least once per year, require a majority present for business to be conducted, and in order to recess for more than 3 days, they require the permission of the other house. Otherwise, the houses are free to determine their own rules for their sessions. According to Senate rules, pro forma sessions are established to meet constitutional requirements when no business is to be conducted, but the Senate is not officially on recess. From the Senate website, a pro forma session is:
"A brief meeting (sometimes only several seconds) of the Senate in which no business is conducted. It is held usually to satisfy the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other."In other words, a pro forma session is a legal session of the Senate, having been established as such by the Senate's in-house rulemaking authority, itself a power granted in the Constitution. Since the Senate is in session, the President has no power to make recess appointments, since the Senate is not in recess. Supporters of Obama's actions have parroted the administration's position that since no business is being conducted, the Senate is 'effectively' in recess, and therefore Obama can make the appointment. This argument is baseless, however, since the President has no constitutional authority to judge the way the Senate conducts its business, and cannot unilaterally decide how the Senate's internal rules work.
What has occurred is that Obama, by appointing Richard Cordry and others, has violated the law as outlined in the U.S. Constitution. As such, he should be held to account through articles of impeachment. There is historical precedence for this very thing: in 1868, President Andrew Johnson was impeached for violations of the Tenure of Office Act, which required Senate approval before a president could terminate an official who had been appointed by a previous president. Johnson was eventually acquitted by one vote, because the Act was ambiguous with regards to the protection afforded to Cabinet-level posts. In this case, however, there is far less ambiguity, and the offense seems to be very clear-cut. If the House determined in 1868 that Johnson's actions at least warranted a trial, there is no doubt that the same applies to Obama. At the very least, he should be required to defend his actions at trial.
While historical precedent and the rule of law seem to make this fairly clear cut, I have no doubt that it will not happen for three reasons. First, the current political climate is such that neither party would even consider charges against one of their own, regardless of the crime. Second, the Republicans would not dream of kicking Obama out of office prematurely, because Republican hatred of him is such a great fundraising point. Can you imagine how much less motivated Republican donors would be if the incumbent was Joe Biden? Third, even individuals motivated by enforcing the rule of law know that an impeachment trial would be spun by the media as a racist Republican witch hunt. Therefore, this will end up being one more case where the President violates the constitutional balance and the rule of law becomes an unacknowledged casualty.