Forty-two Republican senators filed an amicus brief this week in the case of Noel Canning Div. of Noel Corp. v. NLRB, D.C. Cir., No. 12-1115, arguing that the Board lacks a quorum because President Obama’s January 2012 recess appointments were invalid. Employer Noel Canning has petitioned the Court of Appeals to deny enforcement to a Board decision by a three-member panel. Among their arguments, the employer asserts that panel members Sharon Block and Terence F. Flynn were not confirmed by the Senate and that Congress was in session at the time of their purported recess appointments.

The Republican Senators’ amicus brief emphasizes the latter point — that Congress was in a pro forma session at the time the President announced the appointments, and thus they were unconstitutional:

The President’s January 4, 2012 recess appointments to the National Labor Relations Board deprived the Senate of two powers it does possess to protect a purported power the President does not. The Framers accorded the Senate broad authority to govern its own proceedings, including when and how to hold sessions. They also gave the Senate plenary power to reject appointments, deliberately withholding from the Executive unilateral authority to fill vacancies when the Senate is not in a period of “Recess” (aside from inferior officers Congress itself exempts). 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….

At the same time, Speaker of the House Rep. John Boehner (R-OH) filed a separate brief challenging the appointments, highlighting that the House and Senate never agreed to a recess in the manner required by the Constitution.

Because the Supreme Court decided in its 2010 New Process Steel case that the Board requires three valid members for a quorum, a ruling that these appointments were illegitimate would invalidate most of the action taken by the Board this year. Earlier this year in Center for Social Change, Inc., 358 NLRB No. 24 (March 29, 2012), the Board itself rejected similar challenges.

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