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.
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.