Business Group Leader Says Obama Recess Appointments Create 'Constitutional Crisis'

By Newsroom America Staff at 17 Jan 2012

(Newsroom America) -- The leader of a noted business advocacy organization says three recess appointments made by President Obama earlier this month have created a "constitutional crisis" and has vowed to challenge them in court.

Mark Mix, head of the National Right to Work Legal Defense Foundation, says the appointments to the National Labor Relations Board were unconstitutional because the Senate remained in pro forma session throughout the holiday season.

"I think what he said is, 'I don't care what the Constitution says here, process be damned, I'm going to do what I want,'" Mix said, in comments published by Fox News.

The White House is relying on a memo issued Jan. 6, before Obama made the appointments, by the Justice Department. The memo, written by Assistant Attorney General Virginia Seitz, says the president "may properly determine that the Senate is not available under the Recess Appointments Clause when, while in recess, it holds pro forma sessions where no business can be conducted."

Some constitutional analysts are backing the administration, the report said, but critics point to the process of pro forma sessions begun under the guise of Senate Majority Leader Harry Reid, D-Nev., during the final two years of the Bush administration, adding that Obama, then a U.S. senator from Illinois and former constitutional law professor, backed the process at the time.

Also, in 2010, then-Solicitor General Elena Kagan, who has since been appointed to the Supreme Court, wrote a memo to the Supreme Court Clerk's Office, stating that while the president does have authority to make such recess appointments, "... the Senate may act to foreclose this option by declining to recess for more than two or three days at a time..."

Seitz said she had determined Kagan's conclusion was not accurate.

Mix's organization is being joined by other business groups in asking a federal judge, who is already hearing a related case, to add their objections to the recess appointments to that ongoing case.

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