No, I'm not a lawyer, but I do have Google. What if I told you that the Constitution gives the Senate the power to stop intrasession recess appointments cold?
Thought I'd have your attention. Then follow my logic, pick it apart as much as you can, and if it still hangs together, let's get Harry Reid to shut recess appointments down before we get a recess appointed Attorney General (and, yes, he can).
Let's look at US v. Ballin, decided on Leap Day, February 29, 1892.
The full text of the decision is at Findlaw. Here's the relevant section (emphases mine):
With the courts the question is only one of power. The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.
The constitution provides that 'a majority of each [house] shall constitute a quorum to do business.' In other words, when a majority are present the house in in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single [144 U.S. 1, 6] member or fraction of the majority present. All that the constitution requires is the presence of a majority, and when that majority are present the power of the house arises.
But how shall the presence of a majority be determined? The constitution has prescribed no method of making this determination, and it is therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact. It may prescribe answer to roll-call as the only method of determination; or require the passage of members between tellers, and their count, as the sole test; or the count of the speaker or the cleak, and an announcement from the desk of the names of those who are present. Any one of these methods, it must be conceded, is reasonably certain of ascertaining the fact; and as there is no constitutional method prescribed, and no constitutional inhibition of any of those, and no violation of fundamental rights in any, it follows that the house may adopt either or all, or it may provide for a combination of any two of the methods. That was done by the rule in question, and all that that rule attempts to do is to prescribe a method for ascertaining the presence of a majority, and thus establishing the fact that the house is in a condition to transact business.
The Senate establishes its own rules for presence and quorum, and as long as they are inherently fair that power is absolute.
How does that stop recess appointments? By the miracle of modern technology. Have any of you participated in a teleconference, or an online meeting? Of course you have. Is it possible, is it easy, to determine who's present? Of course it is. Can the Senate say that such a meeting constitutes an active session? Yes, it appears, it can. If it does so, can anyone challenge it? No, apparently, no one can, provided it meets the language in US v. Ballin: "It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained."
The Constitution also provides the following:
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
I can read that one of two ways. Either the House would have to concur if a Senate session were to occur in this fashion; or someone would have to stay in Washington to call a session to order. Neither appears insurmountable to me. We could, of course, have sham sessions with a single Senator on the floor for a few minutes each day; but it is possible for a second Senator to demand a quorum, and failure to have one shuts the Senate down for that day. The beauty of the teleconference is that it can constitute a quorum; fifty-one Senators need to be linked, one in DC, and the only way for a Republican (or Independent, for that matter) to challenge the quorum is to sign in or be present. If all fifty Democrats are there -- instant quorum!
Go ahead, tear it apart. Tell me I'm an idiot. The only snag I can see is that Bush can ignore it, which is true of virtually everything we can do. That's not, IMHO, a reason not to do it. If you can't find a hole in my analysis, then let's get Reid to do it, before we get Attorney General Paul Wolfowitz.