lawfag here
did some diggin into the issue of recess appointments - as usual it is a complex and chaotic mix of issues - involves the constitutions "adjournment clause" and the rules set by senate and house to govern their processes.
essentially a recess which permits appoitments must be "sine die" which means "without a day - ie a recess wihout a specific day set to readjourn. in our case we are only concerned with senate rules as all appoitnments must go there.
this issue has been litigated in many contexts - not surprisingly, however, the most important case was recent - the 2014 case known as "Noel Canning v NLRB" here is what the law is according to that SCOTUS case - Holding: The Recess Appointments Clause authorizes the president to fill any existing vacancy during any recess – whether occurring during or between sessions of Congress – of sufficient length. However, for purposes of the clause, the Senate is in session whenever it indicates that it is, as long as – under its own rules – it retains the capacity to transact Senate business.
in the background is the "adjournment clause" of Article one of the constitution which specifies that congress may not adjourn for more than three days without agreement of both houses. so they have to agree BUT there is also a federal law which specifices when this occurs:
USC Title 2 Section 198 provides that: Adjournment. Except in time of war or during a national emergency proclaimed by the President, the two Houses shall adjourn sine die not later than the last day (Sundays excepted) in the month of July in each year unless otherwise provided by the Congress.
so again they MUST go sine die unless both house agree. and then again are we now in a state of ER? i believe under various EO's we are indeed to another layer of shit to wade through
OK now it gets really dense because these politicians use every trick they have to keep power - and that means keeping the senate in session - the only way POTUS can make appts is when the Senate by its own rules has adjourned "sine die"
so just what are these rules? again complex and filled with fuckery - here is the official definition:
adjournment sine die - The end of a legislative session "without day." These adjournments are used to indicate the final adjournment of an annual or the two-year session of a Congress.
so this means if the senate adjourns for more than 3 days w/o specifying a return date it is time for recess appts. they can avoid this obviously. however it appears there is some limit to the fuckery but it has not yet been tested by SCOTUS - and still the issue of the federal summer recess law is fixed.
moar lawsuits coming? seems likely if POTUS tests the waters. so far he has avoided this on numerous fronst and prefers to make deals and get what he can - will there be a showdown at some point? time will tell.