In January a 3-judge panel of United States Court of Appeals for the District of Columbia Circuit found President Barack Obama’s three purported recess appointments to the National Labor Relations Board to be unconstitutional because they were not actually made when the Senate was in recess. In response, the NLRB said it “respectfully disagreed” with the D.C. Circuit’s ruling and would continue to carry out business as usual because “the President’s position in the matter will ultimately be upheld.”
Will it? We shall soon find out. Today the NLRB announced that “in consultation with the Department of Justice, [the Board] intends to file a petition for certiorari with the United States Supreme Court for review of that decision.”
The Supreme Court is practically guaranteed to take the case. In 2004, the 11th Circuit upheld a similar exercise of the recess appointment power by President George W. Bush. With the circuits split on this major issue, the high court has little choice but to wade in. So prepare for some major legal fireworks over Obama’s use of executive power in the coming months.