The U.S. Justice Department this week offered its first extended, public analysis of the controversial court ruling in Washington that invalidated President Barack Obama's recess appointments to a federal labor board.
Top DOJ officials have until March 8 to decide whether to ask the U.S. Court of Appeals to reconsider its conclusion that Obama overstepped his authority last year when he used his recess appointment power to install three members on the National Labor Relations Board.
On Thursday night, DOJ, in a pending labor dispute in a federal appeals court in Philadelphia, offered a glimpse of legal arguments the government could make in asking the full D.C. Circuit to overturn the three-judge panel decision in Noel Canning v. NLRB.
"The Noel Canning decision conflicts with nearly two centuries of Executive Branch practice and the decisions of three other Courts of Appeals, two of them sitting en banc," Beth Brinkmann, a top DOJ Civil Division appellate lawyer, said in the brief in the U.S. Court of Appeals for the Third Circuit. The ruling's constitutional conclusions, Brinkmann continued, "threaten a serious disruption of the separation of powers."