McConnell to Participate in Recess Appointments Case

This morning, the Supreme Court made some interesting procedural decisions in the Noel Canning recess appointments case, all relating the oral arguments scheduled for January 13.

First, the Justices extended the argument time to 90 minutes, rather than the usual 60. The Obama Administration will get an extra 15 minutes to make its arguments. Perhaps more surprisingly, the other extra 15 minutes are to let Senate Republican leader Mitch McConnell participate in oral arguments. McConnell and every Republican in the Senate submitted an amicus brief arguing that President Obama's 2012 recess appointments to the National Labor Relations Board were unconstitutional.

This is the second time this Term that the Court has allowed McConnell to participate as an amicus in oral arguments. The other was the McCutcheon money-in-politics case (which has yet to be decided).

McConnell and his fellow Republicans were not the only amicus filers who had asked to participate in oral arguments. Professor Victor Williams sought to participate to argue that this is a classic "political question" that federal courts should stay out of, a position that none of the parties is arguing. Alternatively, if the Court chooses to address the merits of the case, the professor urges the Justices to not only uphold the recess appointments but to declare confirmation holds and filibusters unconstitutional. However, the Court denied his request.

It is always important to remember why this case exists at all: Because Senate Republicans abused Senate rules and blocked confirmation votes on qualified NLRB nominees, in order to prevent the NLRB from having a quorum and being able to fully carry out its functions. In other words, it was an effort to nullify federal laws and regulations protecting American workers, part of the party's greater effort at nullification of laws – and the results of elections – they don't like.

PFAW