U.S. Senate Republican Leader Mitch McConnell announced today that he and 44 of his Senate colleagues filed an amicus brief in the United States Supreme Court 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 2012. The NLRB lost the case in the United States Court of Appeals for the D.C. Circuit and has asked the Supreme Court to hear the case. The Senators asked that the Court consider the question of the legality of the January 2012 appointments "in its entirety," including the "question whether the President may unilaterally declare the Senate "unavailable' and thus in Recess" even though it is meeting regularly.
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."
Earlier this year, a three-judge panel of the U.S. Circuit Court of Appeals for the D.C. Circuit unanimously ruled that President Obama's so-called 2012 "recess" appointments to the NLRB are invalid. The Court said, "Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers." The Court determined that: "An interpretation of "the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."
Senate Republicans retained former Assistant to the Solicitor General Miguel Estrada to file the amicus brief as he did in the D.C. Circuit case. 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.
Earlier this month, the U.S. Circuit Court of Appeals for the 3rd Circuit ruled (NLRB v. New Vista Nursing and Rehabilitation) that a so-called "recess" appointment in March 2010 by President Obama to the NLRB, Craig Becker, was invalid. The Court ruled (2 to 1) that a "Recess" of the Senate applies only to inter-session recesses of the Senate, not to intra-session recesses of the Senate. The court agreed with the D.C. Circuit in the Noel Canning case. The 3rd Circuit said the Administration's argument that the Senate is in recess for purposes of the Recess Appointments Clause even when it is meeting regularly "was incompatible with the Constitution," and "would eviscerate the [Constitution's] divided-powers framework." If the Administration's view of the Recess Appointment Clause were to prevail, the Court said, "then the President could circumvent the Senate's constitutional role simply by waiting until senators go home for the evening."