Is it recess yet?

In a recent post on Concurring Opinions, Gerard Magliocca asks, "How Long is a Senate Recess?"  The question matters because the answer helps determine when a president may make a “recess appointment.”  Gerard points out that the Justice Department has said that the Senate must be adjourned for three days before it is recessed.  As Gerard notes, though, no constitutional text establishes that as the required period.  Nevertheless, the three-day standard now appears to be the norm, as evidenced by recent efforts by the Senate to prevent a three-day recess by maintaining pro forma sessions

What’s interesting to me, though, is whether the entire premise of recess appointments relies on a misinterpretation of the Constitution.  The specific constitutional language states that, "The President shall have Power to fill up all Vacancies that many happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”  To me, this language suggests that the vacancy must occur – must be created – during the recess.  After all, if I say, “The power outage happened during class,” what would be the most likely (and rational) understanding of that sentence?  I do not think it is that the outage occurred before class began and continued into the session.  Nevertheless, that less convincing interpretation rules the day.  The Supreme Court has never heard a case on the subject, as far as I’m aware.  It’s another provision I will point out in the opening days of my Constitutional Law I course this spring, as I discuss our un-litigated Constitution.