The three-judge panel, all appointed by Republican presidents, ruled that during one of those pro forma sessions on Jan. 3, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.
“Either the Senate is in session or it is in recess,” Chief Judge David Sentelle wrote in the 46-page ruling. “If it has broken for three days within an ongoing session, it is not in ‘the Recess’ described in the Constitution.”
Simply taking a break of an evening or a weekend during a regular working session cannot count, he said. Sentelle said that otherwise “the president could make appointments any time the Senate so much as broke for lunch.”
The judge flatly rejected arguments from the Justice Department’s Office of Legal Counsel, which claimed the president has discretion to decide that the Senate is unavailable to perform its advice and consent function.
“Allowing the president to define the scope of his own appointment power would eviscerate the Constitution’s separation of powers,” Sentelle wrote.
Sentelle was joined in the ruling by Judge Thomas Griffith, appointed to the court by President George W. Bush, and Karen LeCraft Henderson, who was appointed by President George H.W. Bush.