Just how much more unpopular does Senate Minority Leader Mitch McConnell want to be?
(Jonathan Ernst/Reuters)
Senate Republicans have a dilemma. Should they appease the extremists calling for blood over President Obama's recess appointments to the Consumer Financial Protection Bureau and National Labor Relations Board by suing Obama, and risk making themselves even more loathed by everyone else in America? The other reality they face is that the likelihood of a successful suit
is slim.
The politically sensitive nominees were facing drawn-out Republican opposition, and Obama used the recess appointments to tap into voter hostility toward a gridlocked Congress, a major theme in his campaign to win reelection in November.
Republicans have said the move was possibly illegal because the appointments were made while the Senate was still technically in session, and argue it undercuts the Senate's power to confirm nominees.
However, legal experts say there is a high likelihood a lawsuit from Senate Republicans could get thrown out because a court decides they don't have legal standing to bring a case.
"It's very hard for them to sue in their institutional capacity," said Boyden Gray, a former White House counsel to President George H.W. Bush.
A more successful case could come from a business group with at least one member that is the target of a CFPB enforcement action or rulemaking, or is impacted by a decision from the NLRB, which oversees union-organizing elections, among other issues.
(A note to the Reuters reporters and editors: these nominees weren't "politically sensitive." It had nothing to do with the nominees themselves, and everything to do with the Senate Republicans' efforts to shut down these agencies and prevent them from functioning, because they disagree politically with what these agencies do.)
Given all that, it seems likelier that Senate Republicans would defer to a business group to bring any potential suit. The Chamber of Commerce is mulling doing just that, according to the group's chief lobbyist, Bruce Josten. "We haven't made any decisions about a challenge, but we won't take options off the table," he says.
Whether the courts would rule favorably for the Chamber should a case proceed is another question. Catholic University Columbus School of Law professor Victor Williams doubts that the courts "would look favorably on a legal challenge. 'The courts are very reluctant to second guess the political branches when a duty has been given to political branches, explicitly, textually by the Constitution,' he said."
Republicans might just have to lump this one. By the way, have you thanked President Obama for making these appointments yet?