Senators Roger Wicker and Thad Cochran join Senate Republican Leader Mitch McConnell in filing the 44-page brief, which is now part of Noel Canning v. National Labor Relations Board, a case now before the U.S. Court of Appeals in Washington.
The brief states that "the President’s actions infringe on the right of the Senate to safeguard its constitutional authority to govern its own proceedings, including when and how to hold sessions."
That's talking about the President making the appointments while the Senate was technically in session. That's the contention by Wicker and Cochran. The sessions were three "Pro Forma" sessions, where they essentially gavel in and then out.
The U.S. Senate website defines "Pro Forma" sessions as "From the Latin, meaning “as a matter of form,” a pro forma session is a brief meeting of the Senate (sometimes only a few minutes in duration)."
The sessions were conducted to keep Obama from making the appointments. He did it anyway and that's why Cochran, Wicker and the other 40 say Obama violated the Constitution.
CSPAN video of a "Pro Forma" session.
Wicker and Cochran both say Obama has crossed the line.
“These appointments were an attempt to undermine our constitutional system of checks and balances,” said Wicker. “The Senate was in session on the date these appointments were made and therefore had a constitutionally protected right to confirm these nominees. The President overstepped his authority in seeking to define for the Senate how this chamber should govern its own proceedings. I am hopeful that the judicial branch will issue a ruling that upholds the Senate’s constitutionally defined role in the appointments process and confirms that the Senate has a right to determine the rules governing its own proceedings.”
This is from a joint press release from both Senators:
Contending pro forma sessions did not constitute the Senate being in session, President Obama made controversial “recess appointments” to the NLRB and the Consumer Financial Protection Bureau. The Noel Canning case seeks to overturn a NLRB decision forcing a collective bargaining agreement, arguing that the decision was made by a board whose members were appointed unconstitutionally.
The Senators’ amicus brief offers a strong rebuttal to the administration’s defense of the appointments, in part, arguing:
Like all checks and balances, the Senate’s ability to block appointments—coupled with its prerogative to remain in session and foreclose appointments altogether—means that another branch of government, here the Executive, cannot always wield power as it wishes. But that is precisely the point. As the Framers understood, the costs of requiring the Senate’s consent are outweighed by its benefits of preventing Executive abuses of the appointments power and ensuring its wise exercise.
The January 4 recess appointments eviscerated both of those Senate prerogatives. By declaring the Senate not “capable” of performing its constitutional function and therefore in a de facto period of “Recess,” even while the chamber decided to be in session repeatedly, the President usurped the Senate’s control of its own procedures. And by appointing officers without the Senate’s consent, he took away its right to review and reject his nominations—claiming to himself the very unilateral appointments power the Framers withheld. The President did so, moreover, to safeguard executive authority that does not exist.
A copy of the amicus brief is available here.