Senate Republicans File Supreme Court Amicus Brief on President's Unconstitutional "Recess" Appointments

Press Release

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 (NLRB v. Noel Canning) to the constitutionality of President Obama's so-called "recess" appointments to the National Labor Relations Board in January 2012.

Earlier this year a three-judge panel of the United States Court of Appeals for the D.C. Circuit unanimously ruled that the President's so-called 2012 "recess" appointments to the NLRB are invalid, and the Supreme Court is hearing the Administration's appeal of that decision. The Supreme Court argument has been scheduled for January 13, 2014.

As they contended in an earlier amicus brief in the D.C. Circuit, the 45 senators argue in their brief that by declaring the Senate to be in a continual period of recess when it had determined to be in session regularly, the President usurped the Senate's authority to determine the rules of its own proceedings. By purporting to "recess appoint" political allies to the NLRB without the Senate's advice and consent, the senators argue, the President took away the Senate's right and responsibility to review executive nominations--claiming to himself the unilateral appointment power that the Framers deliberately withheld from the Office of the Presidency.

"Last year, the President made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even trying to obtain its advice and consent," Sen. McConnell said. "The President was dismissive of the Constitution's constraints on his power, saying he would "refuse to take no for an answer.' Three federal appeals courts have rejected this and similar abuses of power. They have reaffirmed what Republicans and job creators around the country have been saying: the President's attempt to circumvent the Senate with supposed "recess appointments' to the NLRB was unconstitutional. It will now be up to the Supreme Court to decide whether the President's recess appointments violated the Constitution, as the U.S. Court of Appeals for the D.C. Circuit and two other federal appeals courts have found."

The challenge to the recess appointments 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.

In its January 2013 ruling, the D.C. Circuit 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 in the Supreme Court as he did in the D.C. Circuit in this 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.

Source