Senate Republicans weighed in Monday on the U.S. Supreme Court showdown over recess appointments, arguing that President Obama overreached his constitutional authority when he placed three members on the National Labor Relations Board.
Senate Minority Leader Mitch McConnell (R-Ky.) and 44 of his colleagues in the Senate filed an amicus brief urging the high court to find Obama's actions breached the Constitution's separation of powers by usurping two Senate prerogatives.
The move encroached on the Senate's "Advice and Consent" for presidential appointments, as well as when and how to hold Senate sessions and when to adjourn, the brief states.
"The Executive, at bottom, seeks nothing less than the very unilateral appointments authority that the Framers deliberately withheld," the brief states. "And its position would combine the powers that they strove to separate."
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, along with Gibson associate Jonathan Bond, wrote the brief as well as a brief in May asking the court to take up the case.
Arguments in the case, National Labor Relations Board v. Noel Canning, have been set for Jan. 13, 2014.
The Senate Republicans take issue with Obama's decision that the Senate was not in session when he made his appointments on Jan. 4, 2012, even though the Senate held scheduled sessions on Jan. 3 and Jan. 6 of that year.
"The Executive's claim that the President could disregard those sessions and draw his own 'conclusion' whether the Senate really convened is a naked assault on Senate self-governance," the brief states. "The President has no power to declare a House of Congress adjourned when it says otherwise—least of all when it is, as here, demonstrably capable of exercising its constitutional authority."
The brief asks the Supreme Court to affirm a federal appellate court decision in January. A three-judge panel of the U.S. Court of Appeals for 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.
Two other appeals courts—the Third Circuit and the Fourth Circuit—also declared the recess appointments unlawful.