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All 45 U.S. Senate Republicans, the ABC-led Coalition for a Democratic Workplace (CDW) and the U.S. Chamber of Commerce have filed friend-of-the-court briefs asking for the U.S. Supreme Court to uphold a lower court ruling that President Obama’s recess appointments to the National Labor Relations Board (NLRB) were unconstitutional. 

On Jan. 25, the U.S. Court of Appeals for the D.C. Circuit found the president’s January 2012 recess appointments of Richard Griffin and Sharon Block to the NLRB unconstitutional. 

The original case was brought to the appeals court by Noel Canning, a Washington state bottling company. The ABC-led CDW intervened in the case, successfully arguing that, because the U.S. Senate was in session when the recess appointments were made, they are unconstitutional. On April 25, the NLRB filed a petition with the U.S. Supreme Court to review that decision. 

In their amicus briefs, the Senate Republicans and the Chamber echoed CDW’s argument and advocated for the Supreme Court to uphold appeals court’s decision. The Senators also asked the court to review the president’s recess appointment power as a whole. 

“Employers have defended the constitutional role of the Senate in the appointment process and have sought to overturn harmful policies pushed through an illegally constituted Labor Board,” said CDW Chairman and ABC Vice President of Federal Affairs Geoffrey Burr. “We are confident the Supreme Court will recognize the logic and wisdom laid out in the U.S. Court of Appeals’ rulings and we will see the process through to the end.”

In addition to the Noel Canning decision, the U.S. Court of Appeals for the Third Circuit May 16 ruled that the president’s March 2010 recess appointment of Craig Becker to the NLRB also was unconstitutional. In its decision in New Vista Nursing and Rehabilitation v. NLRB, the Third Circuit court found that the president only is allowed to make recess appointments during breaks between sessions of Congress and not during breaks that occur during sessions.

Both the Noel Canning decision and the New Vista decision potentially invalidate all decision issued under the terms of the unlawful recess appointees.