Is anyone surprised that the Obama administration is skipping en banc review and heading straight to the Supreme Court?
In January, a D.C. Circuit Court of Appeals panel decided that three members of the National Labor Relations Board were unconstitutionally appointed during a Senate recess. Because the NLRB only has five seats — and it can’t operate without a quorum — that ruling means that over 200 NLRB decisions are in jeopardy.
Instead of waiting through both en banc review and the inevitable certiorari process, the administration will expedite the process and ask the Supreme Court to overturn the appellate panel’s decision.
Of course, there's always a chance that SCOTUS could refuse to take up the matter and the administration would be stuck with the panel's ruling, but SCOTUSblog's Lyle Denniston suggests "the chances of review seem strong, given the importance of the issue."
The "issue" that is so important? Whether recess appointments can only be made during intercession recesses.
The Senate was on a 20-day break over the Christmas and New Year's holidays when President Obama made the NLRB appointments, but it was gaveled in and out every few days for pro forma sessions. The pro forma sessions were specifically scheduled to stop the president from making recess appointments.
Senate Republicans weren't the only ones trying to game the system. The president also tried to use the rules to his advantage by strategically scheduling his appointments.
A recess appointment expires at the end of the Senate's next session -- in this case, at the end of 2013 -- or when the appointee or someone else is nominated, confirmed or permanently appointed, whichever occurs first. Because Obama made the appointments at the clear start of a new congressional session, instead of one day earlier during the transition period, he doubled the length of time the appointees could serve.
The D.C. Circuit, however, held that recess appointments are limited to intercession recesses. Since Obama made his appointments during a "pro forma" session, the appellate court ruled that the appointments were invalid from their inception.
Now it's the Supreme Court's turn to decide if the appointments were valid, or if they will consider the petition at all.
Get ready, folks. We're looking at this generation's Marbury v. Madison. Except without the excitement of establishing judicial review.
- What Does the Recess Appointment Ruling Mean for Your Company? (FindLaw's In House Blog)
- Hell Hath No Fury Like an NLRB Loser Scorned (FindLaw's Supreme Court Blog)
- Recess Appointments: What's the Big Deal? (FindLaw's D.C. Circuit Blog)