Reviving an issue that angered Republicans and some business groups this year, Senate Republicans plan to file an amicus brief in support of a lawsuit challenging the constitutionality of recent recess appointments by President Obama.
In a notable twist, Republicans are hiring an attorney previously rejected by Senate Democrats for a federal court nomination to lead their legal efforts.
Obama in January issued recess appointments for Richard Cordray to lead the Consumer Financial Protection Bureau and also tapped three nominees to serve on the National Labor Relations Board as the Senate was holding pro-forma sessions. The Justice Department supported the legality of the appointments, saying that the pro-forma session underway at the time didn’t constitute a legitimate session that could block such appointments.
Following up on the dispute, Senate Minority Leader Mitch McConnell (R-Ky.) said Tuesday that his conference has hired conservative attorney Miguel A. Estrada to file a brief in a case brought by Noel Canning, a Washington state businessman who operates a bottling company. Canning plans to challenge an NLRB ruling that said his company must establish a collective bargaining agreement with a labor union.
McConnell once again called Obama’s appointments an “unconstitutional action”and said his colleagues had been seeking a strong legal challenge to the appointments to support.
“We had been looking for what we think is the best case. Obviously, we’re also interested in Miguel Estrada’s view as well about what was the best case,” McConnell told reporters.
“We think it’s the appropriate case, the best case to do that. And I thought that Miguel’s own experience with the confirmation process, that it might make particularly good sense for him to represent us in this particular undertaking.”
Estrada, a partner in the Washington, D.C., office of Gibson, Dunn & Crutcher, faced a filibuster by Senate Democrats after his 2001 nomination by President George W. Bush to serve on the U.S. Court of Appeals for the District of Columbia. Democrats argued that Estrada lacked the judicial experience necessary to serve on the high-profile court.
In a separate statement, McConnell said the GOP’s legal action “will demonstrate to the Court how the President’s unconstitutional actions fundamentally endanger the Congress’s role in providing a check on the excesses of the executive branch.”
The White House had no immediate comment on the Senate Republican announcement.