The administration is likely to appeal the ruling to the Supreme Court, potentially setting the stage for another high-profile court showdown between congressional Republicans and Obama. Last year, the justices sided with Obama and against the GOP in upholding the 2010 health care overhaul, and the court is currently at the center of another legal faceoff between the two sides, over the constitutionality of the 1996 Defense of Marriage Act.
Jay Sekulow, chief counsel at the American Center for Law and Justice, predicted that the administration would appeal.
“Ultimately, it’s going to the Supreme Court, and that could be very soon,” said Sekulow, the author of an amicus brief in the case on behalf of House Speaker John A. Boehner, R-Ohio, who sided with the bottling company and with Senate Republicans in the case. “I can’t conceive of why [the administration] would not try to do that.”
Noel Francisco, the partner at the law firm Jones Day who argued the case against the NLRB recess appointments, said he felt relatively confident about prevailing should the case go to the Supreme Court.
“I think we’ve got a very strong argument that will appeal both to the originalists on that court and to more conservative justices,” Francisco said on a conference call with reporters Friday. “[And] to the more liberal justices, that if you apply a more pragmatic test here, pragmatically, they don’t make any sense.”
“I can tell you that every decision that the NLRB issues with this board is under a legal cloud,” Francisco added.
For now, the D.C. Circuit’s ruling will stand, and there could be immediate effects on the operation of the labor board, said Paul M. Secunda, associate professor of law at Marquette University Law School in Milwaukee.
“It means that, in some sense, the Republicans can hold the NLRB hostage until the Democrats appoint people who are acceptable to them,” Secunda said.
“If the administration cannot get its nominees approved, the NLRB will, for all intents and purposes, not function. You might say that’s exactly what the Republicans want,” he added. “They see the Obama board as being too activist and too pro-union. So it might be to their advantage.”
Interest Groups Respond
Business groups lauded the decision.
“Small-business owners throughout the country have suffered under the unabashedly pro-union decisions handed down by the NLRB,” said Karen Harned, executive director of the Small Business Legal Center at the National Federation of Independent Business. “They deserve to be protected from unconstitutional acts that exacerbate the NLRB’s devolution from a neutral arbiter between labor and employers to a pro-union government agency.”
Meanwhile, the AFL-CIO called the ruling “radical” and “unprecedented” and said it is likely to be reversed.
“Today’s decision by a panel of Republican judges on the D.C. Circuit is nothing less than shocking,” said AFL-CIO President Richard Trumka. “In a radical and unprecedented decision, the court has interpreted the Constitution in a way that would deprive both Republican and Democratic presidents of a critical tool they have used hundreds of times over the years . . . to keep agencies functioning and make the government work.”