First court challenge filed against Obama's recess appointments

The National Right to Work Foundation filed a motion Friday that challenges the legality of President Obama’s recess appointments to the National Labor Relations Board (NLRB).

The motion, filed in the U.S. District Court for the District of Columbia, is a joint action with the Coalition for a Democratic Workplace and the National Federation of Independent Business (NFIB).

It is the first legal action that questions the president’s recent recess appointments, which he made earlier this month over the fierce objections of Republican lawmakers. The president recess-appointed Richard Cordray as director of the Consumer Financial Protection Bureau, along with three members of the NLRB.

In a statement, the Foundation said it consolidated the motion with another lawsuit against the NLRB that is seeking to block a new labor board rule that would require employers to post notices informing workers of their right to form a union.

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“President Barack Obama has already shown time and again that he is willing to abuse his executive authority to force more workers into union-dues-paying ranks,” said Mark Mix, President of the National Right to Work Foundation, in a statement. “Now Obama’s executive abuse jeopardizes the constitutional balance our country holds very dear, all in the name of paying back his Big Labor benefactors.”

The National Association of Manufacturers is a party to the lawsuit against the union poster rule but is not a party to the motion challenging the recess appointments.

The Foundation argues that the three NLRB members were recess-appointed when the Senate was not in recess and thus are not members of the board.

The White House has said the Senate’s pro forma sessions — which involve banging the gavel once every three days — do not prevent the president from making recess appointments because the chamber is not truly in recess. A legal memo released this week by the Justice Department’s Office of Legal Counsel agreed with the White House, arguing it is legal for the president to make recess appointments.

Business groups have lobbied heavily against the labor board and the consumer bureau. Republicans have also criticized the agencies over the past year and blasted the recess appointments an abuse of executive power.

A spokeswoman for the NLRB declined to comment.