The National Labor Relations Board will ask the Supreme Court to review the federal appeals court ruling invalidating President Obama's recess appointments to the NLRB, rather than asking the entire Washington, D.C., circuit court to review the case:"There are scads of other cases now working their way through the courts of appeals and this is a way of putting the matter to rest," John Elwood, a former Justice Department official now at Vinson & Elkins LLP in Washington, said in an e- mail. "This is what the government did in the Obamacare case as well. Rather than seek rehearing in the 11th Circuit, it went straight to the Supreme Court."If the appeals court's decision is upheld and the recess appointments are struck down, it would invalidate every decision the NLRB has made since January, 2012, because the NLRB cannot issue valid decisions without a three-member quorum, and the recess appointments were necessary to have that quorum. That's the bind Republicans have created: Since they will filibuster all of Obama's nominees, either the board ceases to function and labor laws cease to be enforced, or Obama makes recess appointments.
The D.C. court's ruling in the Noel Canning v. NLRB case was a sweeping one, claiming that the only valid recess appointments are those made between sessions of the Senate and where the vacancy had occurred during the recess. By its logic, few recess appointments by any president would stand up. But:
The U.S. Court of Appeals in Atlanta rejected similar arguments in 2004 by Democratic Senator Ted Kennedy when it upheld President George W. Bush's recess pick of U.S. Circuit Judge William Pryor.Those differing decisions are what the Supreme Court will be asked to resolve.U.S. appeals courts in Manhattan and San Francisco have also approved a more expansive use of the appointment power in rulings involving nominations made by President Dwight Eisenhower, a Republican, and President Jimmy Carter, a Democrat.
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