A right-to-work organization is taking the White House to court over the president’s controversial decision to install three new members on the National Board Relations board without Senate approval.

The legal challenge came after the three new members approved a legal response in an existing lawsuit. The plaintiffs asked the judge on Friday to rule that their participation is invalid because President Barack Obama did not have the authority to appoint them.

“We asked [the judge] to consider the question of whether they are constitutionally seated,” said Mark Mix, president of the National Right to Work Foundation.

Without legitimate appointments, they can’t participate in the lawsuit, Mix told The Daily Caller. And without their participation the board does have the quorum needed to implement the new regulations that the foundation opposes.

When the president installed the three officials on Jan. 4, he justified his move by saying the Senate was in recess.

The U.S. Constitution allows the president to bypass the usual Senate debate and vote to appoint officials when the Senate is in recess.

But “the Senate was never in recess, notwithstanding what the justice department has said,” Mix said. (RELATED: Even Yale professor says Obama’s recess claim a power grab)

The president’s claim that he can determine when the Senate is in recess is a constitutional issue, he added, because it is an effort to expand the president’s ability to appoint people whose nominations elected Senators oppose.

If not struck down by a court, “that is a dramatic endangerment of the checks and balances in our constitution,” Mix told TheDC.

Some GOP Senators, including Iowa Sen. Chuck Grassley, strongly opposed Obama’s sudden move.

Only one Democratic Senator, however, has endorsed Obama’s claim that the Senate was, in fact, in recess on Jan. 4 when he announced the installation of the three board members, and of Richard Cordray, whom he had earlier nominated to direct the new Consumer Financial Protection Bureau.

The case is in the U.S. District Court for the District of Columbia. The plaintiffs are arguing against a new regulation directing 6 million small businesses to post specific labor-related information at their workplaces.

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January 15, 2012
Even Yale professor says Obama’s recess claim a power grab

President Barack Obama’s claim of a legal justification for unilaterally installing Richard Cordray as head of the new finance-sector regulatory bureau.

Obama’s staff say the appointment was based on advice from White House counsel Kathryn Ruemmler, not from the Department of Justice.

But this reliance on Obama’s in-house lawyer marks a “bitter shift” that is reducing the advisory role of the Justice Department’s confirmed appointees, and increasing the role of Obama’s in-house legal counsel, said Bruce Ackerman, a professor at Yale Law, which conservatives have long decried as a hotbed of partisan legal activists.

This legal shift began under President George W. Bush, but Obama has used “other techniques to propel the same shift of power in his direction,” Ackerman wrote The Wall Street Journal on Wednesday.

To curb that shift, he said, the public needs to debate the legal argument for and against Obama’s claimed ability to unilaterally install appointees when the Senate says it is open for business.

“All thoughtful people, Democrat and Republican alike, should insist that Ms. Ruemmler publish her opinion without delay,” wrote Ackerman.

However, White House spokesman Jay Carney has declined to release or even describe Ruemmler’s legal argument, even though few Democratic politicians or academics have defended the administration’s legal claim.

In a brief interview with NPR, Ruemmler claimed that “the way that the Constitution should be interpreted is not through a formalistic or artificial construction but rather a practical, common-sense approach.”

“There are a lot of appointees who have been languishing” without Senate approval, she told NPR. “These were, you know, folks who were necessary in order to make the agencies be able to function.”

Obama used the same politics-over-law argument when he announced his appointment of Cordray.

“Every day that Richard waited to be confirmed was another day when millions of Americans are left unprotected. … That’s inexcusable. It’s wrong. And I refuse to take ‘no’ for an answer,” Obama declared to his high-school audience in Cleveland, Ohio.

The controversy began on Jan. 4 when Obama’s staff claimed that the Senate’s “pro forma” sessions — where few Senators were in town, and very little Senate business was conducted — were the legal equivalent of a formal recess.

The Constitution curbs the president’s power in many ways, for example, by forcing him to win Senate approval for senior appointees. But it also allows the president to quickly appoint people when the Senate is in recess.

Obama used this “pro forma” claim to justify his “recess appointment” of Cordray.

Two days later, Obama escalated the conflict by arguing that his installation of Cordray has, legally, the same effect as a formal Senate approval.

He made this claim when he said that Cordray can exercise the legal authorities that the 2010 law establishing the Consumer Financial Protection Bureau extends only to a Senate-confirmed director.

Only one of 51 Democratic Senators called by The Daily Caller last week agreed with Obama’s claim that the Senate was in recess Jan 3. The sole agreement came from Deleware Sen. Tom Carper.

GOP Senators largely opposed the claim.

On Jan. 6, for example, Sen. Chuck Grassley and seven other GOP Senators sent a letter to the Department of Justice asking for information about the department’s role in Obama’s decision.

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