Supreme Court to Hear Republican Senators in Separation of Powers Case

Experts suggest GOP testimony could sway the court


The Supreme Court will allow Senate Republicans to participate in oral arguments in the National Labor Relations Board recess appointment case, a maneuver that several legal experts suggested could tilt the scales against the Obama administration.

When the Supreme Court convenes to hear oral arguments in NLRB v. Noel Canning, a coalition of 45 Senate Republicans will have 15 minutes to make their case. The court’s willingness to grant them the time came as no surprise to several veteran labor attorneys who spoke with the Washington Free Beacon.

“The case is already elevated as the greatest separation of powers case in 100 years, but hearing from actual senators adds to the clash between the Senate and the ‘Constitutional Law Professor’-in-chief regarding who gets to define whether a Senate session is valid,” said Glenn Taubman, a lawyer with the National Right to Work Legal Defense Foundation.

The case arose in January 2012 when President Barack Obama used his recess power to appoint three lawyers, including Democrats Sharon Block and Richard Griffin, to the NLRB while the Senate was still in session.

Noel Canning, a Washington state company whose labor dispute was handled by the NLRB, challenged the appointments before a D.C. Circuit Appeals court. The D.C. court ruled in January 2013 that President Obama unconstitutionally exercised his recess powers by bypassing the Senate; two more circuit courts later issued similar decisions.

“The case involves the Executive Branch interpreting the Legislative Branch’s rules and the Constitution’s discussion of nominations and confirmations of senior federal government executives,” said former NLRB board member John Raudabaugh. “The GOP Senate members speak, in part, as the Legislative Branch which the existing plaintiffs are not.”

Miguel Estrada of Gibson, Dunn & Crutcher LLP, who is representing the senators, petitioned the court for a speaking slot, saying that the senators had “incomparable interest in the constitutional issues involved.”

“The fact that the 45 Republican Senators are being represented at oral argument clearly elevates the argument and highlights the issue that this case does present a separation of powers issue,” said Jerry Hunter, former NLRB general counsel.

The Republican testimony could prove more damaging to the administration’s appeal than that of Noel Canning, according to David Phippen, a labor attorney at Constangy, Brooks, & Smith LLP.

“The Supreme Court wants to hear from the legislative side of the matter and that the Supreme Court felt it had no other party directly representing that legislative side’s interest,” he said. “The D.C. Circuit Court clearly had constitutional separation of powers implications and the Supreme Court no doubt recognizes that, with or without permitting oral argument by the group of Senate Republicans.”

The decision could have a devastating impact on the NLRB’s function. The board has issued more than 1,000 decisions since President Obama’s recess appointments, including hundreds since the D.C. Circuit ruling. If the court declares the appointments unconstitutional, it could invalidate a number of those decisions, which would have to be re-litigated by the five-member board that was confirmed in August.

Taubmann, who filed an amicus brief in support of Noel Canning, said that the court has shown a willingness to throw out NLRB decisions en masse. The court dismissed more than 1,000 NLRB decisions in the 2010 case New Process Steel v. NLRB because the board issued decisions with only two members.

Taubmann said the Republican testimony will certainly hold some sway over how the Supreme Court measures the legislative role of advise and consent.

“They bring the perspective of senators who have intimate knowledge of the Senate’s rules, and who are entitled to an almost inviolate presumption that if they say it was a session, then that is the end of the discussion,” he said.

The Noel Canning decision led to a flood of NLRB appeals before Griffin and Block withdrew from the board in July as part of the original nuclear option deal. President Obama named Griffin NLRB general counsel and Senate Democrats invoked the nuclear option in November.

Oral arguments have been scheduled for Jan. 13.

Bill McMorris   Email Bill | Full Bio | RSS
Bill McMorris is a staff writer for the Washington Free Beacon. He joins the Beacon from the Franklin Center for Government and Public Integrity, where he was managing editor of Old Dominion Watchdog. He was a 2010 Robert Novak Fellow with the Phillips Foundation, where he studied state pension shortfalls. His work has been featured on CNN, Fox News, The Economist, Colbert Report, and numerous print publications and radio stations. He is a 2008 Cornell University graduate and lives in Alexandria, Va with his wife Teresa and daughter Olivia. His Twitter handle is @FBillMcMorris. His email address is

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