Recently, 38 Republican Senators signed a document in which they vowed to submit an amicus brief in support of litigation challenging President Obama’s appointments of Richard Cordray and the three new members of the NLRB. Last month, we reported on a case challenging the NLRB appointments that is pending in the U.S. District Court for the District of Columbia. Today, we reported on another case pending in the U.S. District Court for the Eastern District of New York that also challenges the NLRB appointments. Presumably, the 38 Senators will seek to submit an amicus brief in one or both of those cases.
By memorializing their intent to file an amicus brief, it seems clear that the Republican Senators have no intention of being plaintiffs in a lawsuit challenging the appointments. I would guess that the Obama Administration breathed a collective sigh of relief at that news. One wonders whether the Republican Senators made a purely political decision or whether they were given legal advice informing them that the likelihood of success was low.