Senate GOP asks High Court to invalidate recess appointments

The Senate GOP conference has asked the Supreme Court to invalidate President Obama's January 2012 recess appointments as an unconstitutional abuse of power.

All 45 Republican senators on Tuesday signed on to a brief arguing that Obama overstepped his authority in naming members to the National Labor Relations Board (NLRB) while the Senate was technically still in session.

“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,” Senate GOP Leader Mitch McConnell (Ky.) said in a statement. 

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“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.”

In January, the U.S. Court of Appeals for the D.C. Circuit found that Obama's appointments of three people to the NLRB was unconstitutional. The White House in April asked the Supreme Court to review the case.

There are currently two vacancies on the five-member NLRB. Without the presence of those appointed in 2012, the board would have been unable to form a quorum. As such, the appeals court's ruling casts doubt on the legality of all the board's recent actions.

The ruling also raises questions about Richard Cordray, the director of the Consumer Financial Protection Bureau, who was appointed by the president at the same time.

For their brief, Senate Republicans have retained Miguel Estrada, a former assistant to the solicitor general whom the senators also retained for the circuit court case.

The Republicans are joined by the U.S. Chamber of Commerce, which filed a brief with the court last week arguing that the appointments were invalid. 

Obama has renominated disputed NLRB members Sharon Block and Richard Griffin along with Chairman Mark Pearce and two new nominees.

Last week the Senate Health, Education, Labor and Pensions Committee voted to advance the set of nominees to the full Senate.