Though the Obama administration has made a couple dozen recess appointments since 2009, only a tiny fraction have been for officials in truly crucial positions, and none have occurred in the past year. This has frustrated progressives and good government advocates who worry that the executive branch has become riddled through like Swiss cheese with vacancies and can't function properly.
On Tuesday, they believed Obama could take advantage of a precedent set by Teddy Roosevelt, and filled those vacancies with the stroke of a pen and the blast of an email in the seconds-long window between sessions of the 112th Congress.
He didn't do it. That meant the Senate went back in "pro forma" session, lackadaisically gaveling in and out every three days to avoid a technical "recess," and thus prevent a recess appointment.
It's customary for Presidents to heed this defensive tactic. But there's nothing that says they have to. And Obama concluded he could move ahead. According to the Wall Street Journal the administration's own attorneys don't think they do -- the Senate's "pro forma" sessions are meaningless and Obama retains the Constitutional right to recess appoint whomever he wants until session begins in earnest.
This creates a significant new precedent -- a bold power play in the face of an unprecedented act of GOP obstruction, but also something to which Obama (and Democrats more generally) have been pretty averse. Given that aversion, it's hard to figure why Obama would choose to create a new precedent rather than avail himself of an existing one -- unless you imagine he's daring the GOP to make a big stink about it, and thus loudly side with Wall Street against him and middle-class consumers. It's a safe bet that's part of his thinking.