- The Washington Times - Tuesday, March 12, 2013

President Obama will elevate the controversy over his recess appointment powers to the highest level.

The National Labor Relations Board on Tuesday said it will ask the Supreme Court to overturn a lower-court ruling that said Mr. Obama overstepped the Constitution, a decision that was a major legal setback for Mr. Obama.

If the justices uphold the January ruling, it could all but eliminate future presidents’ recess powers. Also at stake are dozens of major rulings by the NLRB, which could have to be revisited if the president’s three recess appointees are determined to be invalid.

NLRB could have appealed the lower-court ruling to the full D.C. Circuit Court of Appeals, but instead went straight to the Supreme Court for a final answer.

“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 NLRB said.

The board must file its appeal by April 25.

Business advocates say the NLRB has waited too long to make its decision, keeping companies and labor unions in limbo and leaving a wounded NLRB in place.

“This zombie labor board has been operating for two months,” said Fred Wszolek, a spokesman for the Workforce Fairness Institute. He said the board has been operating under a cloud since the January ruling, and every decision it has made with the questioned board members could have to be revisited, which will cost businesses and labor unions money.

Without the three members Mr. Obama appointed, the NLRB would not have had a quorum and couldn’t have made any decisions.

That is, in fact, what Republicans appeared to be aiming for when they blocked votes on some of his nominees. But early last year, with most members of Congress at home for winter break, the president made his recess appointments to the NLRB and used his powers to tap a new leader for the Consumer Financial Protection Bureau.

The case being appealed, Noel Canning v. NLRB, involves a bottling company that objected to a decision issued by the newly filled board.

The U.S. Chamber of Commerce, which helped with the challenge, said moving straight to the Supreme Court was the right move.

“The government’s decision to seek Supreme Court review is an important step toward resolving the tremendous uncertainty created by the controversial recess appointments,” said chamber President Thomas J. Donohue.

At stake are weighty constitutional questions.

Most presidential nominees need to be confirmed by the Senate, but the Constitution grants the president the power to fill vacant executive branch jobs when the Senate is in recess.

That power mattered particularly when Congress met only briefly each year, and when it was difficult for members to quickly return to Washington, which meant vacancies could last for months.

But more recently, with senators slow-walking presidential nominees, presidents of both parties have used their recess appointment powers to bypass the Senate.

Mr. Obama’s appointments in January 2012, though, appeared to break new ground, because the Senate was meeting in pro forma session every three days specifically to prevent him from making appointments.

The president argued that since most members were at home, Congress wasn’t really open for business, and so his powers were legitimately exercised.

But the appeals court ruled that not only was the Senate not in recess, but it also said presidents for years have misconstrued what the Constitution meant by its reference to “the recess.”

Under the appeals court’s interpretation, recess appointments could be made only after Congress has adjourned at the end of a year, and can be made only for vacancies that arose during that same adjournment.

“Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers,” the judges said in their opinion.

At the time the appeals court ruled, White House press secretary Jay Carney called their decision “novel and unprecedented” and said it contradicted 150 years of practice by presidents of both parties.

In their ruling, the judges said their duty is not to speed up the workings of government but to hold to constitutional principles.

“If some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands,” the judges wrote.

In a statement Tuesday, Senate Minority Leader Mitch McConnell, Kentucky Republican, called the president’s appointments “an unprecedented power grab” and predicted that the Supreme Court would back the appeals panel.

“It’s a shame that these unlawful appointees continue to exercise power, and I feel confident that the Supreme Court will not allow the President to dramatically increase the scope of his power to make recess appointments and avoid the Senate’s constitutional role in confirming high-level federal officials,” he said.

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