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).
So it goes. This challenge by the National Federation of Independent Business has a good chance of succeeding.
The issue here is that in a previous case where the Obama administration tried to defend the NLRB action without a proper quorum, the Solicitor General took the position that the President could not make recess appointments when Congress had been in session. They took the position that the Congress had to be in recess for at least three days.
Obama did this the day after the Senate met, as constitutionally required, to open the 2012 session.
This will not stand. The Obama administration is on both sides of this issue. Actually, in court filings, the administration is only on the record saying Congress has to recess for at least three days for the President to make recess appointments.
They will be arguing against their own position and their own testimony from 2010. This will not end well. They can't have it both ways. They were constitutionally correct in 2010, and constitutionally wrong in 2012.