Senate Republican Leader Mitch McConnell and his 44 Senate Republican colleagues have filed an amicus brief urging the U.S. Supreme Court to grant certiorari in NLRB v. Noel Canning. Indicating that the Republican Senators have “an unparalleled interest in safeguarding the chamber’s constitutionally prescribed role in the appointments process, which the Executive here sought to circumvent,” the brief argues that the court should not limit its review to the questions presented in the NLRB’s certiorari petition.  

The Republican Senators contend in their brief that the court should rule on whether “the President may unilaterally declare the Senate ‘unavailable’ and thus in Recess” despite its having conducted pro forma sessions every three days.  The brief observes that although the Supreme Court could affirm the D.C. Circuit’s decision on either of the grounds it used for invalidating the NLRB recess appointments, the Supreme Court “might instead conclude that the validity of the January 2012 appointments should be resolved on narrower grounds specific to these circumstances.” 

As we reported, respondent Noel Canning, which filed a brief supporting the grant of certiorari, also urged the Supreme Court to consider the additional question of whether the Senate can be deemed to be in recess when it is conducting pro forma sessions.  A trade group, the Coalition for a Democratic Workplace, similarly argues in the amicus brief it filed supporting the grant of certiorari that the court should expressly reject the NLRB’s position that the Senate was in recess during a period when it was conducting pro forma sessions.  In its brief, the Coalition describes itself as comprising “over 600 member organizations representing millions of employers nationwide.”