It’s been a little over a week since the U.S. Court of Appeals for the District of Columbia Circuit ruled that President Barack Obama’s three purported recess appointments to the National Labor Relations Board violated the Constitution because they were not in fact made when the Senate was in recess. Now, as Lyle Denniston reports at SCOTUSblog, the U.S. Supreme Court has received its first petition asking the justices to weigh in on the fallout from that decision. Denniston writes:
Arguing that the National Labor Relations Board has lost its power to take any action, lawyers for a Connecticut nursing home company on Monday asked the Supreme Court to forbid a lower court from enforcing a Board order arising out of a union strike. The application (HealthBridge Management v. Kreisberg, docket 12A769) thus put before the Court for the first time the high-profile constitutional controversy over the President’s authority to make temporary appointments of government officials — a power sharply restricted by the D.C. Circuit Court last month.
Meanwhile, the National Labor Relations Board has said it “respectfully disagrees” with the D.C. Circuit’s ruling and is going to proceed with business as usual, believing that “the President’s position in the matter will ultimately be upheld.” As NLRB Chairman Mark Pearce announced in a statement, "In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions."
If the Supreme Court does end up taking one or more of these cases, expect a major showdown over the proper scope of executive authority, with Barack Obama defending an interpretation of the recess appointment power that goes even further than the one embraced by George W. Bush.