Group’s Supreme Court brief supports private company against negative ruling by a National Labor Relations Board that lacked a constitutionally legal quorum.

WASHINGTON, D.C. (Nov. 26, 2013) — President Obama violated the Constitution by claiming to have made three appointments to the National Labor Relations Board (NLRB) when the Senate was not in recess, so a ruling made by that body is invalid, the American Civil Rights Union (ACRU) argues in a friend of the court brief filed Monday at the U.S. Supreme Court. President Obama is the first President in U.S. history to try to make recess appointments that bypass Senate confirmation, while the Senate was not in recess.

In National Labor Relations Board v. Noel Canning, a Division of the Noel Corporation, the ACRU supports that company’s lawsuit challenging the NLRB’s ruling against it. Noel Canning won its case before the D.C. Circuit Court of Appeals, and the Obama Administration appealed to the high court.

On Jan. 4, 2012, President Obama named Sharon Block, Terence Flynn and Richard Griffin to the NLRB as “recess appointees.” However, the Senate was not in recess. On Feb. 8, 2012, the board issued a ruling against Noel Canning. The brief, written by ACRU General Counsel Peter Ferrara, notes that the board had only two legally appointed members during the Canning ruling, not the three required for a quorum to issue rulings. The president’s action was far more serious than a breach of protocol:

“If the president may declare at his own discretion when the Senate is in recess, that would destroy the whole Separation of Powers check and balance on the President’s Appointment Power,” the brief states.

“It would empower the President to completely evade the primary Appointments Clause required advice and consent of the Senate, whenever, as here, the President fears the Senate will enforce the will of the people against unpopular, radical appointments that would flout even majority viewpoints, let alone any concern for protection of minority views.”

Susan A. Carleson, ACRU chairman and CEO, said, “This case shows why Senate Majority Leader Harry Reid invoked the ‘nuclear option’ of destroying the Senate’s filibuster rule right after President Obama was foiled in his attempt to ‘pack’ the D.C. Circuit with more judges. The D.C. Circuit has been consistent in upholding the constitutional separation of powers, for which this president increasingly shows little respect.”

The ACRU brief notes that, “it is the Senate, not the President, that determines when the Senate is in recess.”