Senate Republicans join suit against NLRB recess appointments

September 27, 2012

The Hill

Kevin Bogardus

Senate Republicans joined a lawsuit on Wednesday that opposes controversial recess appointments President Obama made to the National Labor Relations Board (NLRB) earlier this year.

Senate Minority Leader Mitch McConnell (R-Ky.) said he and 41 other GOP senators are filing an amicus brief to show that Obama acted outside the Constitution when he appointed three members to the labor board in January.

“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,” McConnell said in a statement. “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 GOP senators have retained Miguel Estrada, a former assistant to the solicitor general and a partner at Gibson, Dunn & Crutcher, to file the brief. The senators are filing their brief in a lawsuit brought against the NLRB by Noel Canning, a Yakima, Wash., contract canning and bottling company.

Business groups such as the U.S. Chamber of Commerce have also joined the court challenge to the recess appointments.

At issue is whether Obama was on solid legal ground when he appointed Sharon Block, Terence Flynn and Richard Griffin to the NLRB.

The White House has argued that the Senate was in pro forma session at the time, which entails just a gaveling-in and -out of session every three days while senators are essentially on recess. Critics of the recess appointments say the Senate was in session at the time of the appointments and that the president went beyond his constitutional powers by picking the members for the labor board. 

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