Because the Congress wasn't in recess:
Yet the latest recess appointments push this controversy to a new extreme. The shortest prior period for a recess appointment in recent history was a break of 10 days. In this case, Congress did not intend to take such a recess and took steps to "stay in business" to prevent any end run by the president. Under the Constitution, neither chamber of Congress can recess for more than three days without the consent of the other chamber. This winter, the House expressly declined to give consent — holding sessions every three days to prevent any recess appointments. Moreover, this session was hardly "pro forma." Just three days after going into the session in December, Congress passed the president's demand for a two-month payroll tax holiday extension. So the Obama administration was doing business with Congress on important legislation while simultaneously claiming that Congress was functionally out of session.
Yeah, but most of the House went home, leaving a skeleton crew behind to pass the payroll tax holiday extension for two months, repudiating an earlier vote in the House which called for a one year extension.
Just as bad, the skeleton crew also raised a tax on mortgages for two years to pay for the lousy two month extension. The new tax on mortgages is not just a first, but is utterly insane at a time when the Fed is doing everything it can to stimulate housing through long term interest rate interventions. A tax will only suppress home-buying.
If Republicans had any balls, they'd remove Speaker Boehner and Majority Leader Cantor for that.
It's not just an imperial presidency at work in this case, but an unrepresentative House of Representatives.
See Turley's complete remarks for USA Today here, which provide a very reasonable interpretation of the meaning of the conditions under which recess appointments may be made, i.e. when a vacancy occurs during a recess.
Obama's appointments didn't occur during a recess, and the vacancies didn't occur during one, so they're wrong. And so were George Bush's.
