Senate Republicans are urging the U.S. Supreme Court not to sit on the sidelines in the legal showdown over the constitutionality of President Barack Obama's recess appointments to the National Labor Relations Board.
Senate Minority Leader Mitch McConnell (R-Ky.) and the 44 other Republican senators on Tuesday asked the high court to take up the case and affirm a Washington federal appellate court decision in January that invalidated three of Obama's appointments to the labor board.
"There is no dispute that the purported January 2012 recess appointments to the board present a momentous constitutional question," the amicus brief states.
The Senate Republicans are represented by Gibson, Dunn & Crutcher partner Miguel Estrada, co-chair of the firm's appellate and constitutional law practice group. Estrada, with Gibson associate Jonathan Bond, wrote in the Supreme Court brief filed Tuesday.
In January, a three-judge panel of the D.C. Circuit concluded that Obama circumvented the law when he appointed three people last year—without Senate approval—to the federal labor board. Earlier this month, the U.S. Court of Appeals for the Third Circuit, in Philadelphia, also declared the recess appointments unlawful.
"The President's claimed authority to name principal federal officers without the Senate’s consent while the chamber has declared itself in session has no basis in the Constitution, and if credited would severely and irreparably undermine the separation of powers," the Republicans’ brief states.
Estrada also filed an amicus brief on the issue in the U.S. Court of Appeals for the D.C. Circuit on behalf of a group of U.S. senators.
The U.S. Justice Department, which lost in the lower court, has also asked the court to review the case, National Labor Relations Board v. Noel Canning. The Supreme Court is expected on June 20 to review the petition. The court could decide to hear the case this fall.