President Barack Obama’s recess appointments might not withstand court scrutiny, a variety of legal experts, including some who agreed with Obama on other constitutional issues, tell The Hill
Federal judges may reject Obama’s appointments to the Consumer Financial Protection Bureau (CFPB) and National Labor Relations Board (NLRB), because there is little precedent in this area, the experts say.
“It’s untested ground. If I were a judge, I could write out an opinion either way. There’s no clear precedent,” Charles Fried, a constitutional expert at Harvard Law School who served as solicitor general under former President Ronald Reagan, told The Hill.
The Justice Department contends that the pro forma sessions the Senate has held since Dec. 17 aren’t real work sessions and that the Senate has essentially been on vacation.
But Fried, who agrees with the Obama administration on the constitutionality of healthcare reform, said courts might decline to rule on what counts as a Senate working session, especially given the heavy amount of time it spends on quorum calls.
“A court might very well say that we don’t want to start saying something the Senate calls a session is not a real session because not a lot of senators are around,” Fried said. “One might say that this whole year is one which is not a real session.”
The president clearly has the power to make recess appointments, but it’s unclear whether the two-day gap between pro forma sessions constitutes a real recess.
Last week, three business groups — the National Right to Work Foundation (NRWF), Coalition for a Democratic Workplace and the National Federation of Independent Business — filed a lawsuit challenging Obama’s recess appointments to the NLRB.
Experts said legal action in response to new regulations from the NLRB and CPFB has a better chance than Friday’s motion from the NRWF, which challenges the appointments based on continuing litigation against a previous regulatory action.
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