Two business advocacy groups filed motions [press release] in the US District Court for the District of Columbia [official website] on Friday, contesting the constitutionality of US President Barack Obama's [official website] recent recess appointments [JURIST report]. The National Right to Work Foundation (NRWF) and the National Federation of Independent Business (NFIB) [advocacy websites] contend that the recess appointments are not constitutional as the Senate was technically in a pro forma session, thus providing no recess during which Obama could make appointments. The motions were filed in relation to the groups' ongoing suit challenging the National Labor Relations Board (NLRB) [official website] mandate that rights to unionize [JURIST report] be posted in all workplaces. In a press release, the NFIB also stated that they have amended their complaint [text] to include new charges that the NLRB cannot function to enforce new rules, in part due to Obama's recess appointments:
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. These alleged recess appointments are a brazen circumvention of the Congressional appointment process and raise serious legal concerns that cannot be ignored. The outrage amongst members of the small-business community is severe, and NFIB takes this action today to ensure that its members are protected from unconstitutional acts that exacerbate the NLRB's devolution from a neutral arbiter between labor and employers to a pro-union government agency.Earlier this month, Obama used recess appointments to install Richard Cordray [WP backgrounder] as director of the Consumer Finance Protection Bureau [official website] and appointed [press release] Sharon Block, Terence F. Flynn and Richard F. Griffin as new board members for the NLRB.
The US Department of Justice (DOJ) [official website] defended the use of recess appointments [CRS backgrounder, PDF] by Obama immediately after his announcement. The Recess Appointment Clause [Constitution, Article II, § 2 text] gives the president the "power to fill up all vacancies that may happen during the recess of the Senate." The DOJ's memo argues that although the Senate met between January 3 and 23, the sessions were not sufficient to constitute an interruption of a recess under the Recess Appointment Clause because they were only pro forma sessions that lasted less than a minute and there was no intent to conduct any business. Some experts argue that recess appointments have regularly been used by presidents [JURIST op-ed] since George Washington. It is only a relatively recent practice that obstructionists have begun holding perfunctory pro forma sessions every three days while the Senate is on recess in order to block recess appointments.