As I said in a different thread, this is a load of bull. Even if Obama tries this (and he's tried it before and been slapped down), the recess appointment only applies until the end of the next Congressional session. All Congress has to do is to go into session, declare the session over, adjourn, and then go into a new session. Voila, recess appointment voided.
From the WaPo: "The real problem with trying to make such an intersession recess appointment is that the Supreme Court has held that such an appointment would be unconstitutional in Noel Canning v. NLRB. Dayen and Kilgore purport to address Noel Canning — claiming it does not apply since the case concerned only intrasession recess appointments — but they ignore what Justice Breyer’s opinion for the court actually says. As Seth Barrett Tillman points out, Noel Canning clearly precludes such an appointment. From Justice Breyer’s opinion:
'we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short [i.e., less than 3 days] that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.'
"If a three-day recess is too short, a three-second recess would certainly be as well and, contrary to Dayen’s and Kilgore’s suggestion, Justice Breyer’s opinion makes no distinction between intrasession and intersession recesses. All told, every justice on the court embraced an opinion rejecting the idea that such an intersession recess appointment would be constitutional."
