On Tuesday April 17, Senate Minority Leader Mitch McConnell (R-Ky.) announced that he and other Senate Republicans intend to file a brief amicus curiae in a case challenging the validity of President Obama’s January 4 recess appointments to the National Labor Relations Board. The case, Noel Canning v. NLRB, challenges an NLRB cease and desist order relating to a purported refusal to bargain, and is currently pending before the United States Court of Appeals for the D.C. Circuit. A copy of the petition for review may be found here.
The principal basis for the challenge is the lack of a quorum for the NLRB to issue the order in question because, petitioners argue, the recess appointments of Board members Block, Flynn, and Griffin were constitutionally invalid. The petition for review, which was filed on February 24, has already become something of a lightning rod. The U.S. Chamber of Commerce and the Center for a Democratic Workplace have already moved to intervene in the case in support of the petitioner, as have petitioners in other cases challenging NLRB orders since the recess appointments, and the Teamsters have moved to intervene in support of the NLRB.
McConnell told a press conference, “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.” Expressing his approval for the decision to file an amicus brief, Senator Roy Blunt (R.-Mo.) said: “No matter how you feel about the appointments, in my view, every senator should understand that the Senate should decide when the Senate is in session, not the president. If the president can do what he did with those recess appointments, I believe he could be making appointments right now by just deciding, ‘They’re not there. It’s lunchtime. Let’s make some appointments and they’ll meet the constitutional standard.’”
The constitutional issues surrounding this group of recess appointments are many and varied, and I have blogged about them before. The D.C. Circuit’s ultimate decision in this case may have implications for the recess appointment of CFPB Director Richard Cordray. If the NLRB appointments are held invalid, Cordray’s will perforce be invalid as well. Even if those appointments are upheld, however, there remains an argument about the Cordray appointment that is unique: whether the never-before-occupied position of CFPB Director constituted a “vacancy” within the meaning of the Recess Appointments Clause.