After President Barack Obama illegally declared that three National Labor Relations Board nominees were “recess appointed” while the Senate was not in recess, the U.S. District Court for the District of Columbia voided the appointments in a decision called Noel Canning. Rather than appealing to the full D.C. Circuit, the NLRB (with the Obama administration’s support) has announced that it will appeal directly to the Supreme Court to overturn the decision.
The stakes couldn’t be higher, as The Wall Street Journal reports:
Since the January ruling by the Washington, D.C., appeals court, at least 87 companies and three unions have cited the decision in cases at varying stages within the agency, including cases the board has yet to decide. Many companies are telling the agency that actions against them should be voided or blocked since the board or its appointed regional officers made decisions while the NLRB lacked authority. Dozens more companies are citing the recess appointments in appeals they’ve filed against the agency in federal appellate courts.
If SCOTUS upholds the decision, numerous purported Board decisions that steamrolled precedent to advance unions’ agendas might be invalidated. Additionally, if SCOTUS follows the D.C. Circuit’s reasoning — which severely circumscribed the President’s recess appointment power — the Board’s decisions going back to 2010 are in jeopardy:
The NLRB has issued about 600 decisions and orders since January 2012. But a total of 1,400 cases could be challenged using the Canning decision if a court decides a 2010 labor board recess appointment Mr. Obama made is also invalid, said John Raudabaugh, also a former Republican labor-board member.
Expect SCOTUS to take the case, and possibly even expedite hearing it.