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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