The National Labor Relations Board says it will ask the Supreme Court to review a lower court decision that invalidated three of President Obama’s recess appointments, casting a legal cloud over more than 1,000 board actions over the past year.
In a blockbuster January ruling, three judges on the U.S. Court of Appeals for the D.C. Circuit said the Obama administration overstepped its authority by bypassing the Senate in early 2012 and installing three members of the NLRB during “pro forma” sessions. The White House says Obama has made 26 such appointments, and his predecessor President George W. Bush made 141 over eight years in office.
The ruling from the lower court sent lawyers for business groups into high gear, challenging not only decisions from the labor board, but also the Consumer Financial Protection Bureau, whose leader Richard Cordray was recess appointed the same day. The U.S. Chamber of Commerce, which backs some of the challenges, said the D.C. Circuit court decision properly upheld the system of constitutional checks and balances.
Chamber CEO and president Thomas J. Donohue said he’s pleased the government will ask the Supreme Court to weigh in. “The government’s decision to seek Supreme Court review is an important step toward resolving the tremendous uncertainty created by the controversial recess appointments,” Donohue said in a written statement.
The issue is playing out in federal courts all over the country, where the Obama administration has argued presidential practice dating all the way back to George Washington supports the Justice Department arguments. The lower court ruling, government lawyers wrote in a March 8th brief to a federal appeals court based in Virginia, is “wrong as a matter of constitutional text, history and purpose. They conflict with the conclusions of every other court of appeals to address such challenges. And they would throw out nearly two centuries of long-accepted Executive Branch practice.”
The government’s petition to the Supreme Court is due at the end of April.