President Barack Obama’s “recess” appointments are being challenged in court by small business advocates who argue the selections are illegal and therefore any decisions those individuals make on behalf of the federal government are invalid.
“These alleged recess appointments are a brazen circumvention of the Congressional appointment process and raise serious legal concerns that cannot be ignored,” Karen Harned, executive director of National Federation of Independent Business’s (NFIB) Small Business Legal Center, said in a statement.
The first legal challenge is filed in a federal district court in Washington and argues that Obama illegally bypassed the Senate on Jan. 4 when he made three appointments to the National Labor Relations Board (NLRB).
The motion is part of a separate lawsuit filed by the NFIB and the National Right to Work Foundation against the labor agency hoping to block them from enforcing new rules requiring non-union work places to post notices on how to organize unions.
The pro-business groups argue that the recess appointments are unconstitutional; therefore any future decisions or enforcements by the NLRB board would be decided under an illegal quorum rendering all of its decisions invalid.
“The president’s action was a surprise and terrible disappointment to small-business owners throughout the country who have suffered under the unabashedly pro-union rule-makings handed down by the NLRB,” Harned said.
White House spokesman Eric Schultz defended the recess appointments and said the president has the power under the Constitution "to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent presidents have exercised."
The lawsuit follows on the heels of a Justice Department decision Jan. 6 stating the president could use his discretion to conclude “that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”
Republicans on Capitol Hill are also making their displeasure known through proposed legislation to tighten the purse strings. Rep. Jeff Landry (R. –La.) has authored the Executive Appointment Reform Act that cuts off payment to any individual appointed during a Senate recess. “The Founding Fathers included the Recess Appointments Clause in the Constitution as a means to provide continuity of government,” Landry said, “not as a way to circumvent the advice and consent of the Senate.’”
“As we wait for the court to declare Obama’s appointments as unconstitutional, it is important Congress take steps now to end this gross executive overreach and prevent similar power grabs from happening again,” Landry said.
Obama appointed three new members to the labor board: Sharon Block, Richard Griffin and Terence F. Flynn. In addition, he appointed Richard Cordray to head a contentious new consumer protection agency.
Rep. Diane Black (R. -Tenn.) and more than 70 House Republicans have also signed onto a resolution that would state Congressional dissatisfaction with Obama’s actions. “It’s astounding to me that the president is claiming these are recess appointments and within his authority, when Congress was not in fact in recess,” Black said. “These appointments are an affront to the Constitution. No matter how you look at this, it doesn’t pass the smell test. I hope the House considers my resolution as soon as we return to Washington so we can send a message to President Obama.”
