Yoo crushes Tribe:
"Tribe, I’m afraid, has it wrong, though I am glad to see he is arguing on the basis of the Constitution’s text, structure, and history and not on the need to strike a blow for consumer rights with a person from Ohio (which so far has been the White House’s explanation). First, on the history: All of the precedents cited by Tribe occurred when the Senate was adjourned. The question was when does an adjournment of the Senate become long enough to qualify as a 'recess' under Article II, Section 2 of the Constitution. As far as I know, and Tribe cannot claim to the contrary, no president has ever made a recess appointment when the Senate was formally in session. This is not a question of when does an adjournment become a recess — here, there has been no adjournment."
The WSJ weighs in:
"Remember those terrible days of the Imperial Presidency, when George W. Bush made several 'recess appointments' to overcome Senate opposition? Well, Czar George II never did attempt what President Obama did yesterday in making recess appointments when Congress isn't even on recess.
"Eager to pick a fight with Congress as part of his re-election campaign, Mr. Obama did the Constitutional equivalent of sticking a thumb in its eye and hitting below the belt. He installed Richard Cordray as the first chief of the Consumer Financial Protection Bureau and named three new members to the National Labor Relations Board. He did so even though the Senate was in pro forma session after the new Congress convened this week.
"A President has the power to make a recess appointment, and we've supported Mr. Obama's right to do so. The Constitutional catch is that Congress must be in recess."