Supreme Court Declines to Wade Into Recess Appointments Case

The U.S. Supreme Court on Wednesday refused to step into a labor dispute that involved a challenge to the constitutionality of President Obama's recess appointments to the National Labor Relations Board.

Justice Antonin Scalia had referred the application for a stay in HealthBridge Management v. Kreisberg to the full Court which denied it without comment. Justice Samuel Alito Jr. did not participate in consideration of the application.

The justices' action was not an indication of what they might do if another case raising the constitutional issue gets to the Court, as expected.

It was the second and final rejection of the application that HealthBridge initially filed on Monday with Justice Ruth Bader Ginsburg. After Ginsburg denied the application late Monday, HealthBridge's lawyers, Paul Clement of Bancroft and Rosemary Alito of K&L Gates went to Scalia.

HealthBridge had sought a partial stay of a district court injunction ordering reinstatement of striking workers at its nursing care centers pending its appeal to the U.S. Court of Appeals for the Second Circuit. In the alternative, the application asked the justices to consider the application as a petition for certiorari and a partial stay of the injunction pending resolution of the petition.

The district court issued the reinstatement order under the authority of section 10(j) of the National Labor Relations Act, which authorizes the National Relations Board (NLRB) to seek preliminary injunctive relief to protect the Board's jurisdiction while the Board deliberates before taking final action.

Clement argued in the application to the justices that "the Board's ability to take final action has been called into question by the D.C. Circuit's recent decision invalidating the President's recess appointments and recognizing that the Board therefore lacks a quorum to take action." He was referring to the D.C. Circuit decision in Noel Canning v. NLRB, finding the appointments unconstitutional.

The HealthBridge case was the first case to reach the Court raising the controversial issues surrounding the president's recess appointments. There are a number of other pending court challenges around the country to the NLRB recess appointments as well as to the appointment of Richard Cordray to head the Consumer Financial Protection Bureau.

Comments

[Tony Conte]

I'd be interested is learning the reasoning behind declining to hear this case since the Obama NLRB appointees are clearly not validly holding their positions. Hence, the NLRB orders they have made are void.