Here's the 2010 Washington Post Op-ed by BUSH DOJ attorneys re: bogus pro-forma Senate sessions

[Richardo]

http://www.washingtonpost.com/wp-dyn/content/article/2010/10/14/AR2010101405441.html

Call the Senate's bluff on recess appointments[/headline3]
By Steven G. Bradbury and John P. Elwood
Friday, October 15, 2010

At 11:30 a.m. on Friday, Oct. 1, 2010, Sen. Ben Cardin of Maryland called an otherwise empty Senate chamber to order. He asked the clerk to read a letter from Sen. Daniel Inouye, the president pro tempore of the Senate, appointing Cardin acting president. Then, as presiding officer, Cardin abruptly declared the Senate in recess until 11 a.m. on Tuesday, Oct. 5. This "pro forma session" lasted precisely 28 seconds.

The same procedure will be used 13 more times, at least twice a week for six weeks, until the 111th Congress reconvenes for real after the November elections. The unanimous-consent order setting up this odd procedure stipulates that the Senate shall "meet in pro forma session only with no business conducted."

<snip>

In a 1905 report that the Senate still considers authoritative, the Senate Judiciary Committee recognized that a "Recess of the Senate" occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot "participate as a body in making appointments." The committee cautioned that a "recess" means "something actual, not something fictitious." The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question "is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word 'recess' a technical and not a practical construction, is to disregard substance for form."

<snip>

The president should consider calling the Senate's bluff by exercising his recess appointment power to challenge the use of pro forma sessions. If the Senate persists, then the federal courts may need to resolve the validity of the Senate's gambit.

<snip>

The writers are Washington attorneys. From 2005 to 2009, Bradbury headed the Office of Legal Counsel in the Justice Department, and Elwood served as deputy assistant attorney general. Although Bradbury was nominated as assistant attorney general in 2005, his nomination was never voted on by the full Senate. Individual senators put holds on the nomination, and Senate leaders instituted pro forma sessions to prevent a recess appointment.

Just a little cut-and-paste rebuttal for your outraged freeper friends and family (we've all got them).

[CTyankee]

1. So Barasso is lying. It didn't happen in the Dem Senate during GW Bush's terms of office?

[Richardo]

2. No, he's not lying - it DID happen - see the italicized bio at the end....

The writers are Washington attorneys. From 2005 to 2009, Bradbury headed the Office of Legal Counsel in the Justice Department, and Elwood served as deputy assistant attorney general. Although Bradbury was nominated as assistant attorney general in 2005, his nomination was never voted on by the full Senate. Individual senators put holds on the nomination, and Senate leaders instituted pro forma sessions to prevent a recess appointment.