White House appeals to Supreme Court on recess-appointment ruling

posted at 10:01 am on March 13, 2013 by Ed Morrissey

No surprise, since leaving the DC Court of Appeals ruling in place would mean setting the precedent that a President can’t use the recess-appointment power at all except during, y’know, recesses.  The only real eyebrow archer in this move is that the White House didn’t ask for an en banc review first:

The Obama administration wants the Supreme Court to overturn a lower court ruling that President Obama’s recess appointments were unconstitutional.

U.S. Court of Appeals for the DC Circuit ruled in January that his appointments of three members to the National Labor Relations Board were not valid because the Senate was not technically in recess.

The NLRB said Tuesday that it has decided — in consultation with the Department of Justice — not to ask for an en banc review of the case by the same court,  but is instead filing a petition for certiorari with the United States Supreme Court for review of the decision.

Why not go for the en banc review, which the NLRB and the Obama administration had as an option? After all, the agency all but declared after their loss in January that they didn’t feel bound by the decision.  Any delay of final adjudication allows them to continue that charade and operate as if they had a legal quorum in other cases, daring potential plaintiffs to file suit to invalidate rulings that disadvantage them.  If they wait long enough, the reappointment of the three board members might clear the Senate and make the whole issue moot — at least in regard to the NLRB.

Perhaps the unanimous ruling — and stern scolding delivered in it — convinced White House lawyers that the rest of the DC circuit might be loathe to reverse the decision, or just that their odds didn’t look good.  Even if the full circuit moderated the decision to allow for more circumstances in which a President can use recess-appointment power, they’d be unlikely to moderate it to the extent that it would help the NLRB in keeping its quorum.  An en banc loss, especially one that upheld the initial ruling in full, might also pressure the Supreme Court to sign off on most of their findings.

I’d expect the Supreme Court to take this case immediately and perhaps accelerate the review.  Otherwise, these cases will clog court calendars for months while plaintiffs seek injunctions for rulings that never should have been made.  While this is a significant constitutional question, it doesn’t involve a lot of technical issues that require long consideration.


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Comment pages: 1 2

Been to many TEA party rallies, have you? Or are you merely engaging in rectal speak?

As usual…

JohnGalt23 on May 24, 2013 at 1:46 PM

As I just posted HotairLib has their whole head up their six o clock.

hamradio on May 24, 2013 at 2:43 PM

Who wrote the speech? Or are you just praising the messenger?

mixplix on May 24, 2013 at 2:57 PM

MSNBC consensus: Obama’s speech was historic, amazing, “one of the best of his presidency”

Connect the dots: journolist meeting by invitation only at the White House on, what Tuesday?, “big”speech by Obama on Thursday, lame stream media fawning over speech on Friday. Who would have seen that coming, huh?

parke on May 24, 2013 at 2:58 PM

They need the “war on terror” in order to further erode our Constitutional freedoms and to deflect criticism from the administration’s and Federal government’s ongoing corruption.

They are just trying to massage it so that they don’t offend the Muslims, international Libtards and their own sensibilities anymore than necessary.

A few Muslim terrorists here and there are quite expendable to this Administration despite their sympathies for them. These drone attacks also do much deflect any potential criticism that the Administration is weak in dealing with such matters.

Dr. ZhivBlago on May 24, 2013 at 2:59 PM

MSNBC is nothing but a left wing propaganda machine serving their master, Obama.

rplat on May 24, 2013 at 3:07 PM

Nobel Peace Prize that he totally earned a mere nine months into his presidency? Yeah, that one.

I believe that he was officially nominated 10 days after he was sworn in. Wow! The WON really worked long hours that week and a half to earn that POS medal. During those ten days he ordered NO DRONE STRIKES to keep his peaceful record clean.

fred5678 on May 24, 2013 at 3:22 PM

Obama: Don’t worry about that Ben Ghazi guy. I killed Bin Laden, and Bush didn’t!

And Obummer still wants to close Gitmo? Good luck with that–not even Upchuck Schumer was willing to hold trials in New York!

Steve Z on May 24, 2013 at 3:24 PM

They need the “war on terror” in order to further erode our Constitutional freedoms and to deflect criticism from the administration’s and Federal government’s ongoing corruption.

They just changed the definition of terrorist. They used to be jihadis from the Middle East–now they’re Minutemen in Arizona and Tea Partiers in Ohio.

Steve Z on May 24, 2013 at 3:29 PM

…bromides about what we’re told are President Foreign Policy’s miraculous yet still oddly unmaterialized abilities to move us drastically closer to world peace.

Erika, sometimes your writing shows signs of rivaling even the Master of Snark himself, Allahpundit. Good work!

KS Rex on May 24, 2013 at 3:45 PM

I love how crazy Al invoked the Nobel Peace Prize in praise of a speech that spoke about dropping bombs on people’s head. Maybe it was the “fewer” bombs than before that raised this to historic levels.

Do they even know or care that they are morons.

marnes on May 24, 2013 at 3:46 PM

His speech made less sense than Bluto’s Animal House Speech and was far less entertaining. Nothing less than base rallying time. Never thought I would say this, but Code Pink was the best part.

DDay on May 24, 2013 at 4:01 PM

Sperling posted this at the Examiner on May 23 about this “historic speech of Obysmal’s:

During his foreign policy speech Thursday afternoon, President Obama warned that domestic terrorism would increase in the modern age of the Internet.

“[T]his threat is not new,” Obama said. “But technology and the Internet increase its frequency and lethality.”

Obama warned Americans that materials on the Internet could influence people to commit terrorist acts.

“Today, a person can consume hateful propaganda, commit themselves to a violent agenda and learn how to kill without leaving their home,” he said.

To combat domestic terrorism, Obama reminded Americans that it was important to reach out to Muslim communities.

“The best way to prevent violent extremism is to work with the Muslim American community — which has consistently rejected terrorism — to identify signs of radicalization and partner with law enforcement when an individual is drifting towards violence,” he said. “And these partnerships can only work when we recognize that Muslims are a fundamental part of the American family.”

You see, we are just not working hard enough to “work with the Muslim American community” who are a “fundamental part of the American family.” Watch out, too, because Obysmal is again trying to limit the impact of the Internet.

onlineanalyst on May 24, 2013 at 4:22 PM

That Chris Hayes is a bit of a twink, isn’t he?

onlineanalyst on May 24, 2013 at 4:25 PM

Obama apparently gave two speeches yesterday and I watched the other one.

myiq2xu on May 24, 2013 at 5:03 PM

Didn’t take you that long to inject the man’s race into this didn’t it? And you wonder why blacks will never accept you tea billies hate the man simply because he’s a black man occupying the “people’s” house.

HotAirLib on May 24, 2013 at 1:00 PM

Nah. I’d detest the little pissant s.o.b. if he was white…or Asian…or any one of the myriad of made-up racial divisions.

Solaratov on May 24, 2013 at 11:00 PM

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