The issue of President Barack Obama’s recess appointments to the National Labor Relations Board is now before the Supreme Court, as a nursing home company Monday asked the court to block a board order. This provides the first opportunity for the Supreme Court to consider the constitutionality of the recess appointments, which a lower court invalidated in a separate case Jan. 25.
The emergency application to the Supreme Court was filed by HealthBridge, which is involved in a dispute with the NLRB over an ongoing strike at its nursing home centers in Connecticut.
“The board’s ability to take final action has been called into question by the D.C. Circuit’s recent decision invalidating the president’s recess appointments and recognizing that the board therefore lacks a quorum to take action,” HealthBridge says in its application to the Supreme Court.
“The validity of the president’s recess appointments to the board is a question that will inevitably and quickly find itself before this court,” the company says. “It makes little sense for the courts to order immediate action at the behest of the board here when the board’s ability to act is in profound doubt and will be addressed by this court.”
The filing follows a Jan. 25 ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia that Obama’s appointments to the NLRB while the Senate was on a holiday break in January 2012 were unconstitutional.
The Constitution permits the president to make appointments while the Senate stands in recess. During the period in question, however, the Senate was meeting in a series of pro forma sessions — which Republicans had insisted on specifically to prevent Obama from making appointments — and thus was not technically in recess, Chief Judge David B. Sentelle wrote for the majority.
That case was brought by Noel Canning, a small bottling company in Washington state that sued the NLRB.
The White House and Justice Department have made clear that they disagree with the D.C. Circuit’s opinion, but they have not yet said whether the administration will appeal the ruling. The Justice Department could either appeal the decision to the full circuit court or bypass that step and appeal directly to the Supreme Court.
Sensing a moment of weakness for the labor board, Senate Republicans introduced two bills last week to limit its power. One bill (S 190) would prohibit the NLRB and the Consumer Financial Protection Bureau from enforcing or implementing decisions and regulations, and the other (S 180) would freeze any decisions, regulations or rulings made by the NLRB until a final resolution of the issue in the courts. On the same day that Obama appointed the NLRB members, he also appointed Richard Cordray as director of the CFPB, a move Republicans now argue should also be considered unlawful.
Also last week, a group of 40 Republican senators sent a letter to two of the NLRB board members whose appointments are in question, Sharon Block and Richard Griffin, asking them to immediately vacate their positions and stop drawing salaries. The third board member Obama appointed last January, Terence F. Flynn, resigned in May.
A spokeswoman for the NLRB said that the board will continue its operations as usual and has no plans of dismissing members or discontinuing its work.
“The board respectfully disagrees with [the circuit court] decision and believes that the president’s position in the matter will ultimately be upheld,” NLRB Chairman Mark Gaston Pearce said in a Jan. 25 statement. “It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.”
“In the meantime, the board has important work to do,” he added.