On Sept. 26, 42 Republican Senators and U.S. House of Representatives Speaker John Boehner (R-Ohio) filed amicus briefs in the U.S. Court of Appeals for the District of Columbia arguing that President Obama’s January recess appointments of three members to the National Labor Relations Board (NLRB) were unconstitutional. 

The briefs were filed as part of a case by Noel Canning, a bottling firm, that is appealing an unfair labor practice decision made by the NLRB that included two of the appointed members. In the challenge, Noel Canning raised the issue of whether the NLRB has authority to act when it lacks a quorum of constitutionally appointed members.

The ABC-led Coalition for a Democratic Workplace (CDW) has intervened in the case and filed its opening joint brief with Noel Canning in September. Briefing in the case is expected to last through the end of the year with oral arguments likely taking place in December or January.  

“These appointments have cast into serious doubt the legitimacy of Board decisions and further increased uncertainty among American employers,” said Geoff Burr, ABC vice president of federal affairs and CDW chairman. “We are disappointed the President chose this risky course of action rather than seek the advice and consent of the Senate.”

In their amicus briefs, the Republican Senators and Boehner echoed ABC’s position that, because the Senate was in session when the recess appointments are made, they are unconstitutional.