In January 2013, the U.S Court of Appeals for the District of Columbia Circuit sparked a legal firestorm by ruling that President Barack Obama’s three purported recess appointments to the National Labor Relations Board violated the Constitution because they did not actually occur when the Senate was in recess. According to the D.C. Circuit, Obama’s actions “would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”
In a brief submitted today, the Obama administration has asked the U.S. Supreme Court to overturn that decision and place its stamp of approval on Obama’s use of executive power. “The court of appeals’ decision would dramatically curtail the scope of the President’s authority under the Recess Appointments Clause,” the administration's brief states. “It would deem invalid hundreds of recess appointments made by Presidents since early in the Nation’s history. It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.”
The Supreme Court is likely to take the case. In 2004, the U.S. Court of Appeals for the 11th Circuit upheld President George W. Bush’s similar use of the recess appointment power, meaning the federal circuits are split on this major constitutional issue. In addition, as the Obama administration observes, a year’s worth of NLRB actions have been thrown into doubt by the D.C. Circuit. It won’t be easy for the justices to avoid entering the thicket on this one.
(Thanks to SCOTUSblog for the link to the Obama administration's brief.)