By Alexandra Alper and Thomas Ferraro
WASHINGTON (Reuters) - Top Senate Republicans are weighing whether to file a lawsuit to challenge President Barack Obama's controversial use of recess appointments, but such a suit looks legally shaky and could ultimately backfire with voters.
Senators will likely make a decision on a possible lawsuit after they return to Washington on January 23, a senior Republican aide told Reuters.
"Everything is on the table," the aide said.
Republicans face a difficult decision, because a lawsuit could give Obama more ammunition to paint Republicans as obstructionists, and it is unclear if they have enough of a personal stake to establish legal standing.
Last week, when lawmakers were away for the holidays, Obama bypassed Congress to put Richard Cordray in charge of the new Consumer Financial Protection Bureau and to fill three vacancies on the National Labor Relations Board.
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.
"We haven't made any decisions about a challenge, but we won't take options off the table," said Bruce Josten, chief lobbyist for the U.S. Chamber of Commerce, the country's largest business group.
Josten did say that the validity of the appointments "will likely be challenged and settled by the courts."
A senior Senate Democratic aide said it is unclear if Senate Republicans will file a suit, adding that Obama could end up winning a battle over his appointments in a federal court as well as in the court of public opinion.
"What will Senate Republicans argue in a lawsuit? That they have the right to obstruct? I don't think that's a winning hand," the aide said.
Polls show Congress with its lowest approval rating ever, at only about 10 percent, with many Americans fed up with what they see as endless partisan sniping.
But Republicans see an opportunity to frame Obama's recess appointments as an egregious power grab.
Senate Republican Leader Mitch McConnell, in an online petition and fundraising letter circulated by his campaign committee on Tuesday, demanded that Obama "stop playing politics."
"President Obama arrogantly circumvented the American people with an unprecedented 'recess' appointment of more unelected, unaccountable, unconfirmed 'Czars,'" McConnell wrote.
"This outrageous affront to the American people ventures into uncertain legal territory, threatens the Constitutional process for confirmation, and fundamentally endangers the Constitutional role of Congress to provide a check on the excesses of the executive branch," McConnell added.
At issue is whether the "pro-forma sessions" held by the Senate every three days over the holiday break mean the Senate was open for business.
The U.S. Constitution permits the president to make recess appointments when the Senate is not in session. This was initially done because up until World War II, Congress was out of session more than it was in.
In 2007, Senate Majority Leader Harry Reid, a Democrat, decided to hold brief, non-voting "pro forma sessions" every few days to prevent President George W. Bush from making recess appointments.
At the insistence of Republicans, these "pro forma sessions" continued after Obama took office in January 2009.
Proponents of Obama's appointments have called the sessions a "sham."
But Senate Republicans could argue Congress really never recessed, because the House did not consent to it. House consent is required by the Constitution for Senate breaks of more than three days. They could also point out that the Senate passed legislation during the period, making it harder to claim the body was recessed.
Those arguments may not get heard in a case brought by Senators, however, if a court rules the plaintiffs lack standing.
Legal scholars cite as precedent a 1997 Supreme Court ruling in the case of Raines v. Byrd.
In that case, six lawmakers, a Republican and five Democrats, sued to prevent the president from having the power to line-item veto money amounts in budget bills, an authority granted to the executive branch by a 1996 law.
The Supreme Court ruled that the individual congressmen did not have standing to sue, because they did not "have a sufficient 'personal stake'" in the dispute and they did not allege "a sufficiently concrete injury."
Ultimately, Senate Republicans may decide to duck a direct court fight and pursue a scaled-back option, such as an amicus brief filed in support of an industry group's suit, if one materializes.
"Amicus briefs can decide cases," said Boyd, the former White House counsel.
(Reporting By Alexandra Alper and Thomas Ferraro; Editing by Tim Dobbyn)