The board has ruled on hundreds of labor disputes since the president unilaterally placed Sharon Block, Richard E. Griffin, and Terence F. Flynn on the panel — Flynn resigned his position last May.
In a short statement on Tuesday, the board said it decided after consulting with the Justice Department to petition the Supreme Court instead of appealing to the full D.C. Circuit Court. The petition to the Supreme Court is due by April 25, according to the announcement.
As we pointed out in a previous article, a case involving recess appointments played out in 2010, when the board included only two members and various circuit courts disagreed over whether its rulings were valid.
The Supreme Court determined in a 5-4 decision that the board was not authorized to rule on labor disputes with less than three members, as required by law.
One difference in the Noel Canning case is that the board has the requisite number of members. The question this time around is whether they were appointed properly.
The Constitution allows recess appointments but does not specify how many days the Senate has to be on break before the president can take such action.
Republicans argue that no president has made a recess appointment during a break of less than 10 days. But they were also holding “pro forma” sessions every three days to stop any recess from reaching the 10-day mark.
Democrats used that same tactic to block nominations during the Bush administration.
Obama essentially took the position that the Senate was really in recess despite the pro forma sessions. The D.C. Circuit Court panel disagreed, with Chief Judge David B. Sentelle saying such a policy would give 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.”
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