MISS. SENATORS SUPPORT CONSTITUTIONAL CHALLENGE
TO FLAWED “RECESS” APPOINTMENTS

Cochran & Wicker Join Amicus Brief on Obama’s Labor Relations Board Appointments

WASHINGTON, D.C. – U.S. Senators Thad Cochran (R-Miss.) and Roger Wicker (R-Miss.) today signaled their support for a legal challenge to the constitutional legitimacy of appointments made by the President while the United States Senate was in a pro forma session.

The Mississippi Senators are among 42 Senators supporting an amicus brief filed Wednesday by Republican Senate Leader Mitch McConnell (R-Ky.) that challenges the constitutionality of “recess appointments” made by President Obama to the National Labor Relations Board (NLRB) on Jan. 4—a period when the Senate was conducting pro forma sessions. The brief was filed in Noel Canning v. National Labor Relations Board, a case now before the U.S. Court of Appeals for the D.C. Circuit.

The 44-page brief argues that in making the appointments while the Senate was in session, the President violated the Senate’s constitutional authority to provide advice and consent on high-level presidential appointments. It also argues that the President’s actions infringe on the right of the Senate to safeguard its constitutional authority to govern its own proceedings, including when and how to hold sessions.

“This amicus brief makes a strong argument for protecting the Senate as an institution and for maintaining the checks and balances the Founding Fathers wrote into the Constitution,” Cochran said. “In this case, we can plainly see the consequences of misusing authority for the sake of political convenience. The President has crossed a line and should not go unchallenged.”

“These appointments were an attempt to undermine our constitutional system of checks and balances,” said Wicker. “The Senate was in session on the date these appointments were made and therefore had a constitutionally protected right to confirm these nominees. The President overstepped his authority in seeking to define for the Senate how this chamber should govern its own proceedings. I am hopeful that the judicial branch will issue a ruling that upholds the Senate’s constitutionally defined role in the appointments process and confirms that the Senate has a right to determine the rules governing its own proceedings.”

Contending pro forma sessions did not constitute the Senate being in session, President Obama made controversial “recess appointments” to the NLRB and the Consumer Financial Protection Bureau. The Noel Canning case seeks to overturn a NLRB decision forcing a collective bargaining agreement, arguing that the decision was made by a board whose members were appointed unconstitutionally.

The Senators’ amicus brief offers a strong rebuttal to the administration’s defense of the appointments, in part, arguing:

Like all checks and balances, the Senate’s ability to block appointments—coupled with its prerogative to remain in session and foreclose appointments altogether—means that another branch of government, here the Executive, cannot always wield power as it wishes. But that is precisely the point. As the Framers understood, the costs of requiring the Senate’s consent are outweighed by its benefits of preventing Executive abuses of the appointments power and ensuring its wise exercise.

The January 4 recess appointments eviscerated both of those Senate prerogatives. By declaring the Senate not “capable” of performing its constitutional function and therefore in a de facto period of “Recess,” even while the chamber decided to be in session repeatedly, the President usurped the Senate’s control of its own procedures. And by appointing officers without the Senate’s consent, he took away its right to review and reject his nominations—claiming to himself the very unilateral appointments power the Framers withheld. The President did so, moreover, to safeguard executive authority that does not exist.

A copy of the amicus brief is available here.

Senators Cochran and Wicker Press Release
9/27/12