Senate Republicans are filing a brief against the Obama administration in a looming case before the Supreme Court that could define the limits of the president's appointment powers.
On Monday, all 45 Senate Republicans signed on to a “friend of the court” brief arguing that President Obama violated the Constitution when he appointed three people to the National Labor Relations Board (NLRB) in early 2012.
“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,” Senate Minority Leader Mitch McConnell (R-Ky.) said in a statement.
The lawmakers allege that the president ignored the Senate’s ability to set its own rules by declaring that it was in recess while it was technically in a “pro forma” session and also attacked the chamber’s traditional “advise and consent” role.
“It is the Executive’s theory that would upset the careful balance the Framers struck and dangerously concentrate powers they deliberatively divided,” they wrote in the brief.
In January, 2012, Obama appointed Sharon Block, Terence Flynn and Richard Griffin to the NLRB during a three-week break in the Senate’s calendar.
The U.S. Court of Appeals for the D.C. Circuit invalidated those appointments, ruling that a president can only make recess appointments during breaks between formal sessions of the Senate. Two other appeals courts have also sided against the Obama administration in similar cases challenging the appointments.
The disputed NLRB members have since stepped down from their posts on the labor board. Richard Griffin, however, was recently confirmed by the Senate to be the labor watchdog’s general counsel.
The Senate Republicans have retained Miguel Estrada, a former assistant to the solicitor general, to file the brief before the high court. Estrada performed the same role in the D.C. Circuit case, when Republicans also intervened to oppose the president’s action.
The case before the court is NLRB v. Noel Canning. The Supreme Court is scheduled to hear oral arguments on Jan. 13.