The National Labor Relations Board will seek to go on to the Supreme Court in a major constitutional test of the President’s power to make appointments to government offices when the Senate is out of town, the Board announced Tuesday.  With the Justice Department’s agreement, the Board has opted not to ask the D.C. Circuit Court to reconsider its January ruling sharply restricting presidential authority.  Monday was the deadline to seek en banc review before the full seven-judge Circuit Court.

Under the Supreme Court’s rules, the Board has ninety days after the January ruling — that is, until April 25 — to ask the Justices to hear the issue.  The Justices have the authority to grant or deny review, but the chances of review seem strong, given the importance of the issue.  The dispute almost certainly would not be heard by the Court until the next Term, starting in October.

The three-judge panel of the Circuit Court ruled unanimously that the President’s constitutional authority to fill vacancies at federal agencies can only be used when one Congress has ended and before another begins, or when there is a formal break between sessions, not during any other recesses.  By a divided vote, the panel ruled that the vacancy-filling authority only applies to vacancies that actually open during such a formal recess.

Presidents have often made temporary appointments during Senate recesses, and some have used that power — as President Obama did — after getting frustrated with the Senate’s refusal to act on a nominee.

The Circuit Court ruling nullified President Obama’s temporary appointments in January of last year to three empty seats on the five-member NLRB.  The Board cannot operate unless it has at least three members.  The decision is not confined to the NLRB, and could extend to all federal agencies whose officers are nominated by the President subject to Senate approval, including federal judges.

The issue also has arisen over the President’s temporary appointment of Richard Cordray to head the new Consumer Financial Protection Bureau.  That appointment is being challenged in U.S. District Court in Washington, D.C., in a case that is still in the pre-trial stage.

The decision against the NLRB appointments came in the case of Noel Canning v. NLRB (Circuit docket 12-1115), involving a labor dispute involving a soft-drink bottling company in Yakima, Washington, in its dealings with Teamsters Union Local 760.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Recess appointments issue on way to Court, SCOTUSblog (Mar. 12, 2013, 6:08 PM), http://www.scotusblog.com/2013/03/recess-appointments-issue-on-way-to-court/