Forty-Five Senators File U.S. Supreme Court Brief Blasting President Obama’s Fraudulent ‘Recess’ Appointments to NLRB

After unabashedly ignoring the U.S. Court of Appeals for the D.C. Circuit’s January decision in Noel Canning v. NLRB for roughly three months, President Barack Obama’s National Labor Relations Board finally got around to asking the U.S. Supreme Court to review this ruling in late April.

In Noel Canning, a panel of three appellate judges found on several grounds that the President  had violated the U.S. Constitution by making three putative “recess” appointments to the NLRB in January 2012.  The three judges unanimously agreed that one reason these appointments were illegal and invalid is that the Senate was not actually in a recess, as defined by the Constitution, when the President made the appointments.

Two of the NLRB members whose appointments were found to be invalid by the D.C. Circuit remain on the board today.  Both, ex-union lawyer Richard Griffin and ex-Sen. Ted Kennedy aide Sharon Block, are radical proponents of monopolistic unionism.

The Noel Canning respondents have decided not to oppose NLRB General Counsel Lafe Solomon’s request that the Supreme Court take up the case, in part because a Supreme Court decision affirming the D.C. Circuit may be the only way to persuade the President to at last respect the January decision and prompt Griffin and Block to step down.  The National Right to Work Foundation, the National Right to Work Committee’s sister organization, has filed an amicus brief supporting the position that the January 2012 “recess” appointments are unconstitutional.

Last week Senate Minority Leader Mitch McConnell (R-Ky.), joined by all of the other 44 members of the GOP Senate caucus, filed yet another brief agreeing that the Supreme Court should take the case.  Echoing Right to Work arguments, the senators’ brief also contends that, since the Griffin and Block appointments were invalid, the NLRB now lacks the licit three-member quorum it needs to issue binding decisions.  And the senators’ brief emphasizes that the Board’s arrogant actions warrant prompt review by the high court:

So long as a single Circuit will entertain its arguments, in other words, the Board evidently is content to bury its head in the sand and pretend that the [D.C. Circuit’s Noel Canning] decision . . . does not exist. That approach has nothing to support it. The Board cannot fairly benefit from the principle exempting federal agencies from nonmutual estoppel, which exists to foster “development of important questions of law” and ensure that “several courts of appeals” can “explore a difficult question before this Court grants certiorari,” United States v. Mendoza, 464 U.S. 154, 160 (1984),since a central premise of the petition is that a circuit conflict already has developed, . . . . 

Nevertheless, on these dubious grounds, the Board has pledged to “continue to . . . issue decisions”and take other actions that by law require a quorum,despite a federal court’s determination that it lacks authority to do so.  

True to its word, in just the two months since the court of appeals’ mandate issued, . . . the Board has pressed on and issued more than forty published decisions (more than one hundred altogether).  Until this Court rules definitively on the January 2012 appointments, the Board’s ultra vires operations undoubtedly will continue.

Senate GOP Brief: NLRB v. Noel Canning – Scribdg