Court fight over recess appointments 'almost certain,' Chamber says

The recess appointments President Obama announced Wednesday are “almost certain” to be challenged in court, according to a top official with the nation’s largest business lobby. 

The U.S. Chamber of Commerce has not decided whether it will file a legal challenge to the appointments, according to David Hirschmann, who heads the Chamber’s Center for Capital Markets Competitiveness. But he said he’s confident that Obama’s precedent-shattering move will land the administration in court.

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"We've made no decisions ourselves," Hirschmann told The Hill. "What we do know is ... it's almost certain ultimately a court will decide if what the president did is legal or not."

Obama infuriated Republicans Wednesday by announcing the recess appointment of Richard Cordray to be the first director of the Consumer Financial Protection Bureau (CFPB). Senate Republicans had blocked Cordray's nomination for months, so the president bypassed them with a recess appointment during the holiday break.

He followed that up later in the day with recess appointments for three members of the National Labor Relations Board (NLRB), heading off another likely GOP filibuster.

The recess appointments broke with legal precedent, as they while the Senate is holding regular pro forma sessions. Republicans insist the Senate has not been in recess thanks to the seconds-long sessions held every few days, but White House attorneys determined the procedural move is a gimmick that can be ignored by the president.

House Speaker John Boehner (R-Ohio) blasted the move as an "unprecedented power grab" and said he expects "the courts will find the appointment to be illegitimate."

The gambit puts the bureau in "uncertain legal territory," according to Senate Minority Leader Mitch McConnell (R-Ky.).

CFPB backers were eager to get Cordray in place in large part because the CFPB, created by the Dodd-Frank financial reform law, cannot fully realize its powers without a director in place.

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However, one question a judge could need to answer is whether Cordray will actually be able to assume those powers since he has been recess-appointed. The text of the Dodd-Frank law states that those powers will not take effect until the CFPB director "is confirmed by the Senate."

Hirschmann said questions like that are the type of thing a court will need to consider.

"Clearly, there's new ground here," he said.

And while the Chamber is "not eager to litigate," he blasted the president for a move he said is primarily motivated by politics.

“It looks like the goal here is more the headlines and the confrontation and the politicization of this new agency rather than a substantive outcome," he said.


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