The DoJ, OLC's memoradum on whether the President can issue the recess appointments has been posted online and can be found here . I have only skimmed it but from what I can see it is based on the historical precedence I mentioned above as whether the Senate is actually available for advice and consent or not.

Interesting is the information the memo uses to show the Senate is actually in recess and not available to advice and consent. Namely, the fact the pro forma sessions were announced as having no business being done during them at the start of the recess/adjornment and the fact the Senate's website lists the recess as starting January 3, 2012 and lasting until January 23, 2012.

I think it goes further to provide previous examples of Presidents who issued recess appointments even though the Senate was in pro forma session. However, I was finding it hard to read with all the parentheticals.

Apparently there is an article in the Wall Street Journal today that says the Senate passed the 2month payroll tax cut extension during a pro forma session when nobody was actually available to vote on it. The abstract of the article is trying to say if the pro forma sessions allow recess appointments then the tax cut extension but be invalid. Unfortunately, the article is behind a pay wall so I can't read the whole article. I would appreciate those with a subscription to read the article and explain what it is saying here.

Archduke Russell John wrote:Apparently there is an article in the Wall Street Journal today that says the Senate passed the 2month payroll tax cut extension during a pro forma session when nobody was actually available to vote on it. The abstract of the article is trying to say if the pro forma sessions allow recess appointments then the tax cut extension but be invalid. Unfortunately, the article is behind a pay wall so I can't read the whole article. I would appreciate those with a subscription to read the article and explain what it is saying here.

I cited that fact some time ago. During the big hubbub over the payroll tax, the Senate was in pro forma session.

So, either "pro forma" is a genuine session in which business can be done (like the payroll tax cut) or it's not real and the President is free to ignore it. However, he's trying to have it both ways--it was in session when he liked and not in session when he liked.

This is not the WSJ, but helpful:

While bills cannot pass during pro forma sessions unless there is unanimous consent, but that happened twice last year — on both a Federal Aviation Administration bill and again in December on the two-month payroll tax cut. Both times Mr. Obama signed the legislation into law, signaling that a pro forma session doesn't rule out any action, it just constrains it under normal circumstances.

So, again, if he likes what the Senate is doing, pro forma sessions count; if he doesn't, they don't. That is the heart of the matter: what gives the President the right to decide? Here's why I think Obama might lose, if it goes to court:

The courts generally have left each branch to determine its own rules, which cuts against the Justice Department's argument that Mr. Obama can determine when the Senate is in session and when it is not. And the Senate has considered pro forma sessions to be "in session" for purposes of blocking recess appointments. In fact, Democrats used the same three-day pro forma meetings to block Republican President George W. Bush from making recess appointments in 2007 and 2008. Mr. Obama was in the Senate at the time.