By Edwin S. Hopson
On September 26, 2012, U.S. Senate Minority Leader, Mitch McConnell, announced that he and 41 other Senators had filed an amicus curiae brief in the U.S. Court of Appeals for the District of Columbia in Noel Canning v. NLRB, Nos. 12-1115, 12-1153, challenging the constitutionality of the recess appointments made on January 4, 2012, to the National Labor Relations Board by President Obama.
McConnell stated, in part, in a press release, “[t]he President’s decision to circumvent the American people by installing his appointees at a powerful federal agency while the Senate was continuing to hold sessions, and without obtaining the advice and consent of the Senate, is an unprecedented power grab.”
In the brief filed with the court, the Senators’ lawyers who prepared and filed the brief led off with:
“The President’s January 4, 2012 recess appointments to the National Labor Relations Board deprived the Senate of two powers it does possess to protect a purported power the President does not.”
Should the NLRB ultimately lose this case, all decisions rendered by the Board since January 4, 2012, would likely be voided and of no effect.
A ruling by the court of appeals could take several months. In any event, whoever loses will likely seek an appeal to the U.S. Supreme Court.