Unfortunately for the GOP Senate, however, the GOP House agreed to S. Con. Res. 31 on February 12 without objection. This means that under the plain language of S. Con. Res 31, the Senate is “in recess”–and not in pro forma session.

If this is indeed the case, the Senate is presently in the midst of a 10-day recess (not a pro forma session), and under Noel Canning, President Obama currently possesses the power to make a recess appointment to the Supreme Court until noon on February 22, when the Senate comes back in session.