- The Washington Times - Tuesday, April 17, 2012

Escalating a simmering constitutional feud, Senate Republicans on Tuesday said they’re joining a lawsuit against President Obama’s January recess appointments, which were made even as Senate Republicans said they were still in session.

And Republican senators tapped Miguel Estrada, a man denied a presidential appointment to an appeals court by Democrats in 2003, to be their lawyer in the case, adding to the intrigue surrounding the challenge.

“The president’s decision to circumvent the American people by installing his appointees at a powerful federal agency, when the Senate was not in recess, and without obtaining the advice and consent of the Senate, is an unprecedented power grab,” said Senate Minority Leader Mitch McConnell, Kentucky Republican.

In January Mr. Obama appointed the chief of a new consumer protection board and named several members to the National Labor Relations Board, saying he was using his recess-appointment powers under the Constitution.

But the Senate had been regularly meeting every three days in pro forma meetings, which both Democrats and Republicans had previously said meant it was in session for purposes of preventing recess appointments — an interpretation the Clinton administration had also backed.

Mr. Obama, however, had his Justice Department review the issue and it concluded that because senators were not in town and available to dispense “advice and consent” to the president, he was able to use his recess powers.

A number of challenges have been filed against the president’s appointments. The Republican senators said they’ll intervene in a case out of Washington state in which Noel Canning, a family-owned business, sued to challenge the NLRB appointments.

Mr. McConnell said the U.S. Chamber of Commerce is also likely to intervene in that case.

Asked for his reaction to Republicans’ move, Senate Majority Leader Harry Reid, Nevada Democrat, was dismissive.

“How do I describe ‘I don’t care?’ — because I don’t,” he said.

Mr. Reid led the effort to stymie then-President George W. Bush’s recess appointment powers through pro forma sessions in 2007 and 2008, but reversed himself this year and said the tactic was not acceptable.

In choosing Mr. Estrada to represent them, Republicans picked a man intimately familiar with the Senate’s appointment process.

Mr. Bush tapped Mr. Estrada to be an appeals court judge, but his nomination was blocked by Senate Democrats in the first-ever partisan filibuster of a judicial nominee.

That established a precedent which both parties have continued in the decade since.

Mr. Bush could have used his recess appointment powers to seat Mr. Estrada but didn’t. He did, however, use those powers later to pick another appeals court judge.