The White House mouthpieces have been spinning the tale that President Obama’s recess appointments to the CFPB and the NLRB are ethical and constitutional because the Senate’s pro forma sessions were just “gimmicks” and no Senate business was being done. If that was truly the case, how did the tax cut extension make it onto Obama’s desk for him to sign on December 23?

Proof is that on December 23, President Obama signed a two-month extension of the payroll tax cut.  He said that Congress passed the bill “in the nick of time” and that it was “a make-or-break moment for the middle class in this country.”  The compromise extension really did come through at the last minute, but in a different sense: most members of the Senate had already departed Washington, D.C.

That’s why on December 17, the Senate agreed to an order instituting “pro forma” sessions, of the kind the President now claims are actually recess.  (See the PDF of the Congressional Record here.)  But it was at one of those sessions, on December 23, that the Senate passed the payroll tax cut extension that the President signed into law later that day.  (Again, see the Congressional Record entry.)

Of course, if the Senate was actually on recess that day, it couldn’t have passed the bill, and the President couldn’t have signed it into law.  (The President has not claimed—at least, not yet—that he can enact laws that have not passed Congress.)  But in that case, the President chose to respect the Senate’s own view as to whether it was open for business.

And he was right to do so.  The Constitution empowers the Senate to “determine the rules of its proceedings,” and that’s just what the Senate did by scheduling pro forma sessions at the end of the year.  That much of the Senate was out of town is irrelevant, as passage of the tax cut extension demonstrates. (Read More)

The PJ Tatler also weighed in.

The CR for Dec. 23 shows that Senate Majority Leader Harry Reid specifically asked for unanimous consent for H.R. 3765 so “that if the House passes and sends to the Senate a bill which is identical to the text extension of the reduced payroll tax, unemployment insurance, TANF, and the Medicare payment fix, the bill be considered read three times and passed.”

In that pro forma session, Reid received unanimous consent and the two-month extension of the payroll tax break that had caused such a political commotion in Washington was considered read and passed in the Senate after the House acted. That’s not a “gimmick.” That’s legislating.

That same CR for the Dec. 23 pro forma session records a series of other business actions taken by the Senate.  The president pro tempore signed several enrolled bills.  Other senators were designated as members of a conference committee to negotiate with the House over disagreements to H.R. 3630.   The minority leader even made appointments  to the United States-China Economic and Security Review Commission, pursuant to 22 U.S.C. § 7002. (Read More)

Sounds like Senate business to me, not that Obama cares. He’s going to do what he’s going to do regardless of whether or not it’s legal or ethical.

H/T to Charles B.