The Obama administration will ask the U.S. Supreme Court to reverse a three-judge panel’s ruling that the president violated the Constitution by making appointments to the federal labor board without Senate approval.
The National Labor Relations Board, in a three-sentence statement today, said it won’t seek review by the full U.S. Court of Appeals in Washington of a Jan. 25 ruling that President Barack Obama’s 2012 board appointments were unconstitutional. The board said it intends to file a petition with the high court by April 25.
“There are scads of other cases now working their way through the courts of appeals and this is a way of putting the matter to rest,” John Elwood, a former Justice Department official now at Vinson & Elkins LLP in Washington, said in an e- mail message. “This is what the government did in the Obamacare case as well. Rather than seek rehearing in the 11th Circuit, it went straight to the Supreme Court.”
The picks, made after Republicans refused to consider Obama’s nominees, were “constitutionally invalid” because the Senate wasn’t in recess at the time, the unanimous panel held. Two of the judges went further, saying valid appointments could only be made for vacancies that occurred while the Senate was adjourned.
In the near-term, the ruling may be used to challenge about 600 decisions and orders by the NLRB since January 2012, according to Lafe Solomom, acting general counsel for the board. Hundreds of additional decisions made by earlier recess appointees could also be attacked, he said.
The White House has said the ruling applies only to the company in the case, and won’t affect regulations issued by the Consumer Financial Protection Bureau, whose director, Richard Cordray, was named at the same time as the board members. Republicans, meanwhile, have demanded the NLRB appointees quit immediately.
In recent years, Democratic President Bill Clinton made 139 recess appointments, while Republican President George W. Bush made 171 and Obama, a Democrat, has made 32, according to the Congressional Research Service.
The appeals court ruling came in a case brought by Noel Canning Corp., a soda bottling company, over an NLRB decision in a collective-bargaining agreement. The company argued that a recess only occurs in the period between one session of Congress and the next, not when members are simply absent and the Senate hasn’t adjourned.
Miguel Estrada, a lawyer representing Senate Minority Leader Mitch McConnell and 41 other Republican senators opposing the appointments, said the administration should have made today’s decision in February and sought an expedited review so the court might have ruled this summer.
“The administration obviously thinks it benefits from playing for time while invalidly appointed board members continue to exercise governmental power, or else the administration is afraid of the answer it will get from the Supreme Court,” Estrada, a partner at Gibson, Dunn & Crutcher LLP in Washington, said in an e-mail.
The case is Noel Canning v. National Labor Relations Board, 12-1115, 12-1153, U.S. Court of Appeals for the District of Columbia (Washington).
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