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GOP senators file brief in NLRB Supreme Court appeal

By Sean Higgins

Senate Republican Leader Mitch McConnell, R-Ky., announced that all 44 of his fellow Senate Republicans joined him in signing an amicus brief urging the Supreme Court to invalidate President Obama’s recess appointments. The lawmakers argue in the brief that the appointments made to the National Labor Relations Board last year were abuses of executive power.

The brief argues:

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When the President made the purported recess appointments to the Board on January 4, 2012, the Senate was not in “the Recess,” even by the Executive’s own longstanding definition. Quite the contrary, between December 17, 2011, and January 23, 2012, the chamber held regularly scheduled sessions every three days, at which it could (and did) conduct any legislative business it chose, by unanimous consent, up to and including passing legislation. Until now, the Executive itself — including this Administration, in this Court — has agreed that by doing so, the Senate remains in “Session,” foreclosing recess appointments.

The brief refers to the case Noel Canning v. NLRB. In it, an appeals court ruled in January that the appointments of NLRB members Sharon Block and Richard Griffin were unconstitutional, leaving the board without a valid quorum to conduct business. The NLRB has asked the Supreme Court to resolve the matter. Since then, a second court has ruled a past board member, Craig Becker, was appointed in a similarly unconstitutional manner.

The court has not officially taken up the case, though it is widely expected to do so. The earliest the justices would be able to hear it is in October.

In a statement emailed to reporters, McConnell said:

The President’s decision to circumvent the American people by installing his appointees at a powerful federal agency while the Senate was continuing to hold sessions, and without obtaining the advice and consent of the Senate, is an unprecedented power grab. We will demonstrate to the Court how the President’s unconstitutional actions fundamentally endanger the Congress’s role in providing a check on the excesses of the executive branch.

For further reading on issue check out my column from earlier this month and these blog posts.

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