One of the reasons I love Power Line Blog is that John Hinderaker, its main writer, is a lawyer and explains everything in a logical, lawyerly way. I don’t always understand what he is saying, but I appreciate the logical approach.

Today Mr. Hinderaker posted an opinion by Michael McConnell on the Justice Department’s statement that President Obama’s recess appointments, made when Congress was not really in recess, are legal.

The Opinion places enormous weight on the fact that the Senate’s resolution providing for pro forma sessions declared that there would be “no business conducted.” There are two problems with this, as a legal matter. First, as the Opinion concedes, the important question is whether at these sessions the Senate is “capable” of exercising its constitutional functions – not whether, on any particular occasion, it has chosen not to do so. Second, in actual fact the Senate has conducted major business during these sessions, including passing the payroll tax holiday extension during a pro forma session on December 23. The Opinion weakly responds that, notwithstanding this evidence of actual practice, the President “may properly rely on the public pronouncements of the Senate that it will not conduct business.” It is hard to see why the Senate’s stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so. The President is well aware the Senate is doing business on these days, because he has signed two pieces of legislation passed during them.

Please follow the above link to the article to read the entire opinion. The article concludes with the following statement:

Given the extent to which Barack Obama and Eric Holder have politicized the Department of Justice, it is really not too surprising that in the view of Obama’s DOJ, the law really does depend on which party occupies the White House.

These appointments showed a total disregard for the Constitution and the separation of powers. The Republicans need to make a big deal of this. We don’t have a king–we have a President whose appointments are subject to the advice and consent of the Senate. The Senate needs to object to being ignored in this process. I have a feeling that if George W. Bush had done this, we might have heard a lot more about it.