Republican senators said this week they will file papers supporting lawsuits trying to overturn President Obama’s recess appointments and demanding that the Senate’s top Democrat explain his own change of heart on the constitutional questions raised by the president’s move.
In joining the lawsuits, Senate Republicans will elevate those challenges to a full clash between the executive and legislative branches.
“We will file amicus curiae briefs in all of the appropriate courts, and we will take this issue to the most important court in the land and that is the court of the American people on Election Day,” said Sen. Lamar Alexander, Tennessee Republican, adding that all 47 GOP senators will join in the legal fight.
Stymied by a Republican-led blockade of some of his nominees, Mr. Obama last month used a two-day gap between Senate sessions to appoint Richard Cordray to head the new Consumer Financial Protection Bureau and appointing three new members to establish a quorum for the National Labor Relations Board.
The moves broke long-standing practice that presidents of both parties had held to that they could not make appointments if the Senate was in recess for fewer than three days.
Senators had been meeting in pro forma sessions, which meant they didn’t plan to conduct any business, and almost all of them were out of town.
Mr. Obama argues that means they were not ready and able to give “advice and consent” — the duties the Constitution confers upon senators when it comes to executive nominees. The president obtained a legal opinion from his Justice Department justifying the move, and the White House has regularly brushed aside questions about potential legal challenges, saying they are comfortable with their stance.
But speaking on the Senate floor Thursday, Mr. Alexander said that under Mr. Obama’s interpretation, the Senate could recess for lunch and come back to find “the country has a new Supreme Court justice.”
One senator has vowed to block future nominees from being confirmed untilafter the election.
And in addition to the legal challenges, Republicans are demanding answers from Senate Majority Leader Harry Reid, Nevada Democrat, who pioneered using pro-forma sessions every three days to block then-President George W. Bush from making appointments in 2007 and 2008.
Mr. Reid said last month that he wasn’t actually blocking Mr. Bush. He said Senate Democrats moved enough of the president’s nominees through the process that Mr. Bush didn’t need to use his recess powers.
“The reason President Bush didn’t test this in the courts is we gave him basically most everything he wanted anyway. He had no reason to do that,” Mr. Reid said.
“This apparent shift in your position raises a number of concerns,” a group of 34 Republican senators, led by Sen. Orrin G. Hatch, Utah Republican, said in a letter Thursday to Mr. Reid. “Most specifically, it appears that you believe the importance of preserving Senate’s constitutional role in the nomination and appointment process varies depending on the political party of the president.”
Mr. Reid had not responded to the letter by Thursday evening.