"[George W. Bush presidential legal counsel] Bradbury sharply denounced the [pro forma] sessions as “phony,” arguing: “They serve but one purpose: to prevent the president from exercising his constitutional authority to make recess appointments.” He urged the President to call the Senate’s bluff in order to avoid more “gridlock.”
While this shows that Senate Dems also used the “pro forma” tactic, it also allows the White House to argue that even Bush’s lawyers see it as a sham and agree that Obama has the power to make such appointments."
This could be real interesting, both as a campaign issue to show that the Republicans have been blocking Obama just for the sake of blocking (and not doing that which is good for the country due to their intentions to block whatever he's doing), and also as an issue of historical significance. Question: if Congress does something to subvert the rights of the President to perform his designated duties, does the President have the right to perform his duties, even if in so doing he apparently breaks a Constitutional prohibition?
Yeah, the Supreme Court opinjins on this one could have bona fide entertainment value.