The National Labor Relations Board, which is facing serious legal challenges to its actions from Big Business over whether the board has a legal quorum, announced today that it was asking the Supreme Court to settle the matter:
The National Labor Relations Board has determined not to seek en banc rehearing in NoelCanning 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, 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.
An appeals court found earlier this year that President Obama exceeded his powers last year when he used recess appointments to install three people on the board. It found the Senate was not actually in recess at the time. Therefore, those NLRB appointees (one of whom has since left) were not legally serving. The ruling has called into question all of the NLRB’s actions since the appointments. Without those boardmembers, it would lack a legal quorum.
The NLRB has disputed the court’s ruling and tried to conduct business as if the ruling didn’t apply. That has proven difficult as numerous business have challenged its rulings over the last year. The matter was widely expected to end up before the Supreme Court.