Senate Republicans have filed a friend-of-the-court brief challenging President Obama's appointments to the National Labor Relations Board, reigniting a confrontation over presidential power.
Senator Mitch McConnell of Kentucky, the Republican leader, announced on Wednesday that 42 of the 47 Republicans in the Senate had signed the petition filed in the federal appeals court in Washington.
The lawmakers argued that the Senate was not in recess in January when Mr. Obama appointed three lawyers to the labor board and Richard Cordray as the director of the Consumer Financial Protection Bureau. They said in the brief that the appointments were unconstitutional.
“The president's decision to circumvent the American people by installing his appointees at a powerful federal agency while the Senate was continuing to hold sessions, and without obtaining the advice and consent of the Senate, is an unprecedented power grab,†Mr. McConnell said in a statement.
Mr. Obama made the recess appointments on Jan. 4. Kathryn Ruemmler, the White House counsel, said at the time that the installments were lawful because the Senate was “unavailable to fulfill its function.â€
Republicans were furious, arguing that the Senate held two brief “pro forma†sessions on Jan. 3 and 6. The brief filed on Wednesday fulfilled their repeated promises to challenge the appointments in court.
“The president claims power to deem the Senate not ‘genuinely capable of exercising its constitutional function' during pro forma sessions and thus in a de facto recess,†Miguel Estrada, the senators' attorney, wrote in the brief. “But the Cons titution confers no such power, and allowing the president to wield it would oust the Senate from its own constitutional role.â€
Mr. Estrada, a former lawyer for the George H. W. Bush administration, was nominated to the federal appeals court in Washington in 2001. He withdrew his name two years later after Democrats blocked his confirmation in the Senate.
The brief was filed in Noel Canning v. the National Labor Relations Board, a case from Washington State brought by a bottling and canning company disputing a ruling by the labor board that the company violated federal labor laws.
The White House and Congressional Republicans have battled extensively over executive powers during Mr. Obama's term. Experts say the question of whether Congress can block a president from making recess appointments by staying in pro forma session turns on what counts as a recess - and who gets to decide.
The Republican senators who did not sign the brief are Scott P. Bro wn of Massachusetts, Dean Heller of Nevada, Mark S. Kirk of Illinois, Lisa Murkowski of Alaska and Olympia J. Snowe of Maine.
Charlie Savage contributed reporting.
