The Obama Administration, unfortunately, has a very strong argument to support their decision. Congress is not in session. The pro-forma sessions, although ruled by the Clinton DOJ in 93 as being sufficient and having been affirmed as such by the Obama DOJ, will not be seen as sufficient by the courts. I strongly disagree.
Each chamber of Congress has the power to make its own rules, including the right to determine what is a recess to them.
Furthermore, there is a check and balance for this, as each chamber must consent to the other chamber's call for a recess, so two distinct bodies must rule on this.
There is plenty of Constitutional ground to say that the Congress gets to determine when it is in recess or not.
What we need is a statement from Roberts on this.
-PJ
Actually, that may be a compelling or even defining argument . . . only the Senate can make the rules for the Senate, so only they can say what constitutes a "recess."
Problem is what can be done about it other than filing a law suit? Congress doesn't have the ability to stop what Obama has set in motion--especially while Reid and the Democrats are in the majority.