A federal appeals court in Washington, D.C., heard arguments Dec. 5 in one of 14 lawsuits on whether President Obama violated the Constitution in January when he made recess appointments to fill three National Labor Relations Board (NLRB) vacancies while the Senate was in session. Obama selected Democrats Sharon Block and Richard Griffin, along with Republican Terence Flynn. Flynn has since resigned from the board.

In a case brought by Noel Canning, a Washington state bottling company, lawyers argued the president abused his power and undermined the Senate’s advice and consent role on nominations when he appointed the board members. Specifically, Noel Canning challenged an NLRB decision that it must enter into a collective bargaining agreement with a labor union. The company argues the board did not have a quorum to issue a decision because the recess appointments were invalid.

The ABC-led Coalition for a Democratic Workplace (CDW) intervened in the case and filed its opening joint brief with Noel Canning in September. In addition, 42 Republican Senators and the U.S. House of Representatives Speaker John Boehner (R-Ohio) filed amicus briefs in October echoing Noel Canning and CDW’s arguments that because the Senate was not in session when the recess appointments were made, they are unconstitutional. 

A decision in the case is expected in early 2013.