The House Republican position on President Obama’s recess appointments is hard to even express without laughing. GOP Congressmembers are actually saying that they oppose the appointments because Congress is not in recess – and as soon as they finish their vacation and get back to Washington, they’ll have something to say about that. I’ve heard it described as self-negating, and that sounds about right. The other problem here is that process arguments almost always lose to ideological ones, and with the President standing with consumers against predatory financial institutions, and Republicans crying that the Senate wasn’t technically in recess, I see this as a no-contest, at least in the court of public opinion.
Of slightly more consequence is the threat by Senate Republicans to take the President to court. But only slightly.
Top Senate Republicans are weighing whether to file a lawsuit to challenge President Barack Obama’s controversial use of recess appointments, but such a suit looks legally shaky and could ultimately backfire with voters.
Senators will likely make a decision on a possible lawsuit after they return to Washington on January 23, a senior Republican aide told Reuters.
“Everything is on the table,” the aide said.
But there’s no reason to assume that a court will rule the Senate to have standing in such a case; they may not be able to cite a “sufficiently concrete injury.” Anyway, in differences of opinion between the legislative and executive branches, the judicial branch frequently tries to stay out of it by calling it a political question.
There are potential cases that could have merit. If a company regulated or fined by the CFPB or NLRB, which would not be able to be regulated or fined without the recess appointment, sued because the appointments were unconstitutional, you could see the courts taking that case. But it’s not clear yet whether anyone will pursue that lawsuit. In fact, the American Financial Services Association, the main non-bank lender trade group, decided not to sue CFPB over the appointment. The US Chamber of Commerce continues to say that they have not made a final decision, though “we won’t take options off the table,” according to Bruce Josten, their chief lobbyist.
A lawsuit from the Senate also faces the same problems in the court of public opinion of a process argument against an ideological argument. Democrats have been mildly successful in painting Republicans as obstructionists. They would be suing for the right to obstruct again. Anyway, the public doesn’t really care about how things get done, just that they do.
The Senate GOP’s best bet is to encourage some group with standing to sue, and then jump on that. We’ll see if that happens.