JW and AEF File Amici Curiae Brief with U.S. Supreme Court in Support of Challenge to Obama NLRB Recess Appointments
DECEMBER 02, 2013
Brief supports Court of Appeals decision, argues, “The Recess Appointment Clause is clear: Recess appointments are only permissible during Recess between Senate sessions.”
(Washington, DC) – Judicial Watch announced today that on November 25, 2013, it joined with the Allied Educational Foundation (AEF) in filing an amici curiae brief with the United States Supreme Court in support of a U.S. Court of Appeals decision that the Obama National Labor Relations Board (NLRB) appointments of January 2012 violated the Constitution’s Recess Appointments Clause (National Labor Relations Board v. Noel Canning, et. al (No. 12-1281)).
According to the Judicial Watch/AEF amici brief:
The President’s alleged Recess appointments to the NLRB are unconstitutional for the primary reason that the Senate was in session at the time of the purported appointments… The President’s declaration that these sessions were invalid disregards the Senate’s authority to determine and administer its own procedures, including when it will recess and how it will conduct its business.
Stating that “The Senate alone can determine when it will hold session in conformity with its obligations and delegated powers by the Constitution,” the Judicial Watch/AEF amici specifically argues:
I. The constitutional text is clear and consistent with the Framers’ intent that recess appointments are restricted to the recess between Senate sessions.
The Court [of Appeals] correctly pointed to the significant distinction of the Framers’ use of “the Recess,” rather than “a recess.” “Then, as now, the word ‘the’ was and is a definite article…’noting a particular thing…’” “As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said ‘the Recess,’ what they really meant was ‘a recess.’”
II. The Senate determines its own rules and procedures.
The President’s supposed Recess appointments are unconstitutional because the Senate was in session at the time they were made … On December 17, 2011, the Senate decided unanimously to convene every three days from December 17, 2011, to January 20, 2012, including on, but not limited to, January 3, 2012, and January 6, 2012… The President’s declaration that these sessions were invalid disregards the Senate’s authority to determine and administer its own procedures, including when it will recess and how it will conduct its business.
III. The inconsistent application of recess appointments is irrelevant to the interpretation of the recess appointment clause.
[T]he Board cannot deny the dilemma presented by the inconsistent interpretations of prior Presidents, nor can it deny the lack of such temporary appointments for at the least the first eighty (80) years following the Constitution’s ratification … In fact, the President had taken the same position when then Solicitor Elena Kagan’s letter was filed with the Supreme Court on behalf of Respondent in New Process Steel, L.P. v. NLRB stating that “the Senate may act to foreclose the [recess appointment] option by declining to recess” and convening pro forma sessions every three days…The constitutional interpretation of the validity of Recess appointments cannot be based on the inconsistent past intra-session appointments politically motivated by one side of the aisle or another.
On January 24, the U.S. Supreme Court agreed to review a U.S. Court of Appeals for the District of Columbia ruling in the case of National Labor Relations Board v. Noel Canning that held unconstitutional President Obama’s January 4, 2012, recess appointments of Sharon Block (D), Terence F. Flynn (R), and Richard F. Griffin (D) to the National Labor Relations Board. The Appeals Court held that the NLRB lacked a quorum to decide the unfair labor practice case because two of the three members on the board panel deciding the case (Block and Flynn) had received recess appointments in violation of the Constitution’s the Recess Appointment Clause. Although the Recess Appointments Clause allows a president to fill vacancies occurring while Congress is in recess, the Senate met in pro forma meetings every three business days. The Appeals Court, therefore, determined that the Senate was not in recess on the days the Senate did not meet because for the purpose of the Recess Appointments Clause recess is defined as the time between, rather than within, sessions of Congress. Though previous presidents have made intrasession recess appointments “if they are of substantial length,” the Obama administration was the first to make such appointments during pro forma sessions of the Senate. “Obama’s recess appointments are unprecedented power grabs, which if left to stand will turn the constitutional separation of powers on its head,” said Judicial Watch President Tom Fitton. “Unfortunately, these recess appointments are one of many examples of this president acting outside of his constitutional authority. We hope the Supreme Court reminds President Obama that he is not above the law.” The Allied Education Foundation, Judicial Watch’s partner in the amici brief, is a charitable and educational foundation dedicated to improving the quality of life through education. In furtherance of that goal, the Foundation has engaged in a number of projects which include, but are not limited to, educational and health conferences domestically and abroad. AEF has frequently partnered with Judicial Watch to fight government and judicial corruption and to promote a return to ethics and morality in the nations’ public life.