JW and AEF File Amici Curiae Brief with U.S. Supreme Court in Support of Challenge to Obama NLRB Recess Appointments -- Judicial Watch

Brief supports Court of Appeals decision, argues, “The Recess Appointment Clause is clear: Recess appointments are only permissible during Recess between Senate sessions.”


(Washington, DC) – Judicial Watch announced today that on November 25, 2013, it joined with the Allied Educational Foundation (AEF) in filing an amici curiae brief with the United States Supreme Court in support of a U.S. Court of Appeals decision that the Obama National Labor Relations Board (NLRB) appointments of January 2012 violated the Constitution’s Recess Appointments Clause (National Labor Relations Board v. Noel Canning, et. al (No. 12-1281)).

According to the Judicial Watch/AEF amici brief:

The President’s alleged Recess appointments to the NLRB are unconstitutional for the primary reason that the Senate was in session at the time of the purported appointments… The President’s declaration that these sessions were invalid disregards the Senate’s authority to determine and administer its own procedures, including when it will recess and how it will conduct its business.

Stating that “The Senate alone can determine when it will hold session in conformity with its obligations and delegated powers by the Constitution,” the Judicial Watch/AEF amici specifically argues:

I.      The constitutional text is clear and consistent with the Framers’ intent that recess appointments are restricted to the recess between Senate sessions.

The Court [of Appeals] correctly pointed to the significant distinction of the Framers’ use of “the Recess,” rather than “a recess.”  “Then, as now, the word ‘the’ was and is a definite article…’noting a particular thing…’”  “As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said ‘the Recess,’ what they really meant was ‘a recess.’”

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