Obama administration asks Supreme Court to reverse recess appointment ruling

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Saying that the ruling unduly restricts presidential authority, the Obama administration has asked the U.S. Supreme Court to strike down a federal appellate court decision invalidating last year’s recess appointments to the National Labor Relations Board.

The administration chose to go directly to the nation’s highest court rather than asking a full panel of the U.S. Court of Appeals for the D.C. Circuit to reconsider the ruling in the case Noel Canning v. NLRB. In that decision, a panel of the district court held that President Barack Obama’s appointments of three NLRB members in January 2012 were unconstitutional because the Recess Appointments Clause allows such action only when Congress breaks for inter-session recesses — not during breaks within a Congressional session. The decision also indirectly called into question the authority of Consumer Financial Protection Bureau Director Richard Cordray, who was appointed simultaneously with the NLRB members.

In its petition for certiorari filed April 25, the administration argued that if the D.C. Circuit’s ruling is allowed to stand it “would dramatically curtail the scope of the President’s authority under the Recess Appointments Clause.”

Upholding that decision “would deem invalid hundreds of recess appointments made by Presidents since early in the Nation’s history,” the certiorari petition states. “It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.”

The case moves to the Supreme Court as lawmakers continue to battle the White House over the NLRB. White House officials maintain that the recess appointments were necessary to keep the board from falling below its mandatory three-member quorum because GOP lawmakers were blocking the president’s nominees. Republicans members of the Senate complained of NLRB rulings they said were harmful to businesses, and held a series of pro-forma sessions to prevent Congress from officially going into recess to block appointments by the president.

Karen Harned, executive director of the National Federation of Independent Business’ Small Business Legal Center, said she hopes the Supreme Court takes up and upholds the D.C. Circuit’s ruling.

“Small-business owners throughout the country have suffered under the unabashedly pro-union decisions handed down by the NLRB,” Harned said. “They deserve to be protected from unconstitutional acts that exacerbate the NLRB’s devolution from a neutral arbiter between labor and employers to a pro-union government agency.”