Green Room

Reuters: Filibuster deal won’t moot the Supreme Court case on recess appointments

posted at 1:59 pm on July 18, 2013 by

That’s important, as it means that the nation’s top court will still have to address the abuse of power by President Obama in declaring unilaterally that the Senate was not in session when he appointed Richard Cordray to the CFPB and two members to the NLRB.  The deal this week that finally got Cordray confirmed and the two NLRB appointees booted won’t bring an end to that constitutional dispute, Reuters’ Lawrence Hurley writes, because the new appointees won’t reverse the rulings overturned by the courts:

A deal with U.S. senators allowing President Barack Obama to make appointments to the National Labor Relations Board (NLRB) without Republican obstruction is unlikely to stop the Supreme Court from deciding a major case concerning his previous appointees to the agency. …

In the unlikely event that the administration were to adopt a new legal strategy to avoid a Supreme Court ruling, the NLRB would have to voluntarily agree to reconsider hundreds of cases that were decided while there were questions over whether the board had a quorum, said Patrick Scully, a lawyer who regularly represents employers before the board.

“I just don’t see that happening,” he said, basing his observation on what he said was his personal experience with the board’s lawyers and their view of the recent controversy.

Doug Kendall, president of the left-leaning Constitutional Accountability Center, which backs the Obama administration in the case, said the White House has a strong desire to have the Washington appeals court’s decision overturned because it interpreted the president’s recess appointment power so narrowly. If the administration were to ask the Supreme Court to dismiss the case, the appeals court ruling would still be binding in future cases.

“I don’t think the administration can leave the ruling on the books,” Kendall said.

That’s actually why the White House will go out of its way to avoid mooting the Supreme Court appeal — which they brought after two appellate courts upheld the narrow definition of “recess” in the lawsuits.  (A third appellate court, the 4th Circuit, ruled similarly in overturning more NLRB rulings yesterday.) If the Supreme Court dropped the case now, it would leave the narrow definition in these decisions as law — that recess appointments can take place only in a formal intersession recess. Obama needs the Supreme Court to loosen the definition again, especially if Republicans take control of the Senate in 2015.

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I’d love to read a Scalia ruling that the president does not get to decide when the Senate is in recess. Sadly, I think Roberts will once again rule with the 4 liberals.

rbj on July 18, 2013 at 2:21 PM

Is “moot” a verb? I thought something had to be rendered moot, or something like that?

Never seen the word used that way, that’s all! Learn something new every day.

lizzieillinois on July 20, 2013 at 8:55 AM