U.S. Senate Republican Leader Mitch McConnell announced today that he and 41 of his Senate colleagues filed an amicus brief in a challenge (Noel Canning v. NLRB) to the constitutionality of President Obama's so-called "recess" appointments to the National Labor Relations Board in January. The case is pending in the U.S. Court of Appeals for the D.C. Circuit.
The suit is being brought by Noel Canning, a local, family-owned business in Washington State that bottles and distributes soft drinks. The company is challenging the NLRB's determination that it must enter into a collective bargaining agreement with a labor union.
"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," Sen. McConnell said. "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."
The 42 Senate Republicans retained former Assistant to the Solicitor General Miguel Estrada to file the amicus brief. Mr. Estrada is a partner in the Washington, D.C., office of Gibson, Dunn & Crutcher and serves as Co-Chair of the firm's Appellate and Constitutional Law Practice Group.