That's not how the "recess appointment" works. You can only do it if the Senate is truly "in recess" and ever since Shrub recess-appointed someone as odious as John Bolton to the U.N. Ambassador post during a 2006 Senate recess (just after the general election where Democrats had just won back the House after 12 years out of power), the Senate has NEVER gone into a "hard" recess since.
I.e., they hold "Pro-forma sessions" (even when lame ducks) where a couple volunteer (Senate majority party) Senators will appear, gavel into session for "Morning Business", and then "go into a recess subject to the call of the chair" (i.e., not adjourned). And then wash, rinse, 3 days later, ad infinitum.
The whole idea of a "Pro-Forma session" being considered "not in recess" was even taken to court when Obama challenged it by recess-appointing members to the NLRB and the chair of the CFPB. Eventually the SCOTUS struck down the ability for a President to do that while those "Pro-Forma sessions" were underway.
Amy Howe Independent Contractor and Reporter
Posted Thu, June 26th, 2014 3:13 pm
Court strikes down recess appointments: In Plain English
With only four decisions remaining when the Justices took the bench today, we knew we would have to get something good: all four decisions had the potential to be blockbusters. And we did indeed, starting with a unanimous declaration by the Supreme Court that the president violated the Constitution in 2012 when he appointed three commissioners to the National Labor Relations Board during a brief recess of the Senate. Let’s talk about the decision and what it means in Plain English.
As unlikely as it sounds, the Court’s decision in National Labor Relations Board v. Noel Canning was its first pronouncement on the scope of the president’s power to make recess appointments. And the Court’s opinion was a mixed bag for both sides. Noel Canning, the soft-drink bottling company challenging the president’s recess appointments to the NLRB, and the conservative and business groups that supported it certainly regarded it as a victory in the sense that the specific recess appointments at issue were deemed invalid. But the president and his supporters could also declare victory, at least to a point: the Court upheld his power to make other recess appointments – as long as they are made during recesses that last at least ten days.
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The Court then turned to the third and final question presented in the case: whether the Senate can prevent the president from making recess appointments even during its longer recesses by holding “pro forma” sessions – that is, sessions at which no work actually gets done – every three days. The Court answered that question in the affirmative, rejecting the federal government’s argument that the “pro forma” sessions are, in essence, just a sham to thwart the president’s recess appointments powers. In the Court’s view, all that matters is whether the Senate says it is in session and could at least in theory conduct business, which is possible (even if unlikely) at the pro forma sessions.
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But what about other recess appointments in the future? The short answer is that it really will depend on which parties are in power. Right now Democrats control both the White House and the Senate. With the decision by Senate Democrats back in November to invoke the “nuclear option” – which allows them to confirm the president’s nominees with a simple majority – the president currently doesn’t need to use recess appointments to fill judgeships or senior positions in the executive branch. But that could change if the Republicans gain control of the Senate this November (a prospect that many believe is increasingly likely): a Republican Senate could not only block the president’s nominees, but prevent the president from making recess appointments by ensuring that it never recesses for more than a few days. And, of course, the shoe could be on the other foot if – after the 2016 elections — the Democrats were to control the Senate but lose the White House. So even if the president’s recess appointments power may not factor into many voters’ decision-making process, it certainly could hang in the balance in the next two elections.
https://www.scotusblog.com/2014/06/court-strikes-down-recess-appointments-in-plain-english/
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