Republican lawmakers who failed to block President Barack Obama from installing administration officials without Senate approval in January asked a federal appeals court to rule the appointments unconstitutional.
Miguel Estrada, a lawyer representing Senate Minority Leader Mitch McConnell and 41 other Republican senators, told a three-judge panel of the U.S. Court of Appeals in Washington Wednesday that the president usurped the Senate's powers with his appointment of three National Labor Relations Board members. Senate Republicans were allowed to argue the case along with the canning company that challenged the appointments.
Upholding the appointments would take a "break-glass-in-case-of-emergency" power and turn into "a background rule that allows our president to evade the role of the Senate," Estrada told judges during a one-hour argument while McConnell looked on from the audience.
The argument was the second heard by a federal appeals court over objections to the president's naming the NLRB members on Jan. 4 while the Senate was holding so-called pro-forma sessions that sometimes involved a single senator appearing in the chamber every third day.
A three-judge panel of the U.S. Court of Appeals in Chicago heard argument on Nov. 30 in two cases brought by union members who are seeking to reverse board rulings made by the Obama appointees.
Obama cited his constitutional power to make so-called recess appointments while the Senate is out of session when he put the officials in their posts.
The Washington case is being considered by U.S. Circuit Judges David Sentelle, Karen LeCraft Henderson and Thomas Griffith, all three of whom were appointed by Republican presidents. The judges didn't say today when they may rule in the case.