The National Labor Relations Board announced on Tuesday that it will take the legal battle over President Barack Obama's recess appointments directly to the U.S. Supreme Court.
In a brief statement, the board said it would not seek en banc rehearing before the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. NLRB. An appellate panel on January 25 held that the president's appointments of three members to the board were invalid.
Writing for the panel, Chief Judge David Sentelle said the appointments were not made during "the Recess," as contemplated by the recess appointments clause of the Constitution. He also said appointments were constitutionally invalid because the vacancies filled by the appointments did not "happen" during the recess of the Senate. The term "happen" in the recess clause means that a vacancy must arise during the recess, rather than merely existing at the time the recess begins, according to the panel. The President's appointees filled seats vacated between August 27, 2010 and January 3, 2012, and therefore did not "happen" during the recess in which they were filled.
"I am pleased that today the government announced that it will seek U.S. Supreme Court review of the recess appointments case we briefed and argued on behalf of our member, the Noel Canning Corporation, in the D.C. Circuit," said Thomas Donohue, president and CEO of the U.S. Chamber of Commerce which represented Noel Canning. "The government's decision to seek Supreme Court review is an important step toward resolving the tremendous uncertainty created by the controversial recess appointments."
The NLRB said it will file a petition for certiorari with the justices by the deadline, April 25. If the court agrees to take the case, as seems likely, arguments would take place next term.
Obama's controversial recess appointments to the NLRB came at the same time as his selection of Richard Cordray to head the Consumer Financial Protection Bureau. That appointment is also under challenge in the federal courts.