As Jonathan Bernstein explains, the basis of this tactic is a nearly 20-year-old DOJ opinion concluding that “a recess must exceed three days to count for the purposes of making recess appointments.” Since that opinion was drafted, however, a higher authority has weighed in on the question and reached the opposite result. In 2004, President Bush recess appointed Judge William Pryor to a seat on the United States Court of Appeals for the Eleventh Circuit. This led to Evans v. Stephens, the only court of appeals opinion to examine how long a recess must last before the president may make a recess appointment. Evans‘ holding unambiguously permits President Obama to make a recess appointment right now:
The challengers have used both history and textual analysis to support their contentions that the ten- or eleven-day break in the Senate’s Session that underlies Judge Pryor’s appointment was not a “Recess” within the meaning of the Recess Appointments Clause. We have considered all of the arguments. But the arguments are not so strong as to persuade us that [President Bush’s] interpretation is incorrect. […] The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.
To be sure, the Eleventh Circuit is not the Supreme Court, so it is possible that the justices would take a different view of the issue. But such an outcome it highly unlikely. The vote in Evans was 7 to 1 with one additional judge voting to pass the question on to the Supreme Court without deciding the case. In other words, 7 of the 8 judges to consider the question concluded that the president could make a recess appointment even if the recess only lasted five minutes. There is also good reason to believe that the Supreme Court would simply reject any challenge to President Obama’s recess appointments as a “political question.”
So the highest legal authority to weigh in on the recess appointments power said that President Obama can make a recess appointment right now, and it did so by an overwhelming margin. Meanwhile, congressional Republicans are slowly shutting down the entire federal government by draining it of long-needed personnel. The newly-created Consumer Financial Protection Bureau isn’t even capable of performing many of its duties because it lacks a director.
President Obama can end this today by recess appointing that director.