Even the liberal New Republic thinks President Obama’s attempt to redefine what it means for the Senate to be in recess—so that he may make a “recess” appointment of Richard Cordray to the Consumer Financial Protection Bureau and three new members to the National Labor Relations Board—is constitutionally suspect. TNR senior editor Tim Noah reports that the White House justifies its action by pointing to a 1905 report of the Senate judiciary committee that defines a Senate recess as

the period of the time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments […] .

“The trouble with this definition,” Noah points out, “is that it would define as a Senate recess just about every weekend of the year.” Noah might be worried that a future Republican president could use Obama’s precedent to eviscerate the Senate’s constitutional role of giving advice and consent on nominees.

More reading on the Cordray “recess” appointment: “Obama’s Recess Appointments Are Unconstitutional,” by Edwin Meese III and Todd Gaziano, Washington Post; “Obama’s Reckless Ploy,” by David B. Rivkin and Lee A. Casey, Wall Street Journal; “Mr. President: Why Refuse to Answer Whether the Justice Department Issued a Legal Opinion?,” by David S. Addington, The Foundry.