NLRB Will Turn To Supreme Court Over Recess Appointments

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The National Labor Relations Board will ask the Supreme Court to review a sweeping lower-court decision which invalidated three of President Obama’s recess appointments to the board, according to an announcement Tuesday.

In January, a three-judge panel on the D.C. Circuit Court of Appeals ruled that Obama exceeded his constitutional authority to make recess appointments because the Senate was not technically in recess when he made them. As TPM reported at the time, in order to add three members to the NLRB, allowing the five-member board to have a quorum and thus the ability to make decisions, Obama ignored the pro forma sessions used to keep the Senate in session and concluded that, effectively, the Senate was in recess. 

“The National Labor Relations Board has determined not to seek en banc rehearing in Noel Canning v. NLRB, in which the U.S. Court of Appeals for the DC Circuit held that the January 4, 2012 recess appointments of three members to the Board were invalid,” the Board announced in a statement on its website. “The Board, in consultation with the Department of Justice, intends to file a petition for certiorari with the United States Supreme Court for review of that decision. The petition for certiorari is due on April 25, 2013.” 

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