He certainly can be taken to court - by any member of the Senate. The Constitution is very clear that a recess appointment can ONLY be made when the Senate is in recess.
The pro forma session means that the Senate WAS in session. Which means that Obama COULD NOT make a recess appointment. This would be the argument against him.
Additionally, the Dodd-Frank law SPECIFICALLY states that the powers of the Director of the CFPB ARE NOT vested with him until he is "confirmed by the Senate" [actual text].
LASTLY, the claim by Obama [and Reid] that the Senate was "not technically in session" brings up a HUGE point. Reid called for [and got] "unanimous consent" for the Senate to be in "pro forma" session just before Christmas. That way, the Senate could go home early.
This was so that IF a deal on the extension of the "tax cuts" were reached, the Senators WOULD NOT have to come back to DC and wait three days in the Capitol before voting on it. And, the deal was reached.
Since the Senate was in pro forma session all the while - the Senators did their own thing for three days, then came back to DC, voted on the bill, and THEN got the hell back out of Dodge.
IF Obama AND Reid are correct about the pro forma session being a sham, THEN the bill that Obama signed IS NULL AND VOID - since the Senate WAS NOT in session AND the rules call for the bill to be signed ONLY after the final version has been available to the Senate for THREE days WHILE the Senate is IN SESSION.
OBAMA CANNOT HAVE IT BOTH WAYS. He CANNOT claim that the pro forma session is a sham so he can make a recess appointment, YET claim the Senate WAS in session [by pro forma] when he signed the bill ...
One FINAL FINAL thing to post #16:
Obama’s OWN Solicitor General [and it MIGHT have been Kagan] has argued the Administration’s position before the Supreme Court that the Senate MUST be OUT of Session MORE than three days before a recess appoinment can be made. And that the pro forma session keeps the Senate IN SESSION.
This happened in 2010 ...
Great analysis. But being Obama, he probably will be allowed to have it both ways.
OBAMA CANNOT HAVE IT BOTH WAYS.
YES HE CAN!
At least as long as Senator Mumbles and Representative Cry Me a River is what passes for Republican “leadership”...