Johanns reiterated the Republican complaint that even Obama had referred to a Bush administration recess appointment as "damaged goods" when he was serving as Illinois senator. Johanns added that it's even worse this time, because the Bush appointment was at least made when the Senate was in recess, while Obama's NLRB appointments were made when the Senate was not in recess.

"The President has now done a complete reversal on this issue and is willing to ignore the Constitution and appoint damaged goods to his own Administration — even while the Senate is in session," he said.

Johanns said he would join a "friend of the court" brief that Republican senators send to the D.C. Circuit Court of Appeals in a case that is challenging the legitimacy of Obama's decision to name Sharon Block, Terence Flynn and Richard Griffin to the NLRB.

In that case, the Noel Canning company in Washington state is challenging a February NLRB decision that said the company violated the National Labor Relations Act, and is basing its challenge on the argument that the three new board members were not appointed legally. The U.S. Chamber of Commerce has joined this challenge as well, and Senate Minority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellMcConnell sees Ohio in play as confidence about midterms grows   Giuliani: White House wants briefing on classified meeting over Russia probe GOP senators introduce Trump's plan to claw back billion in spending MORE (R-Ky.) said last week that Republicans would file a brief in favor of the challenge to the court.

Senate aides said it is unclear when the Senate GOP brief would be filed.