This afternoon, the Administration petitioned the Supreme Court to take up the case regarding the recess appointments to the National Labor Relations Board (NLRB) in the Noel Canning case. On January 25 the U.S. Circuit Court of Appeals for the D.C. Circuit definitively decided these appointments, made on January 4, 2012, were unconstitutional, thus bringing the NLRB down to one member and lacking a quorum to issue case decisions or issue rules. Despite the strong and clear opinion by the D.C. Circuit, the NLRB continues to flaunt the Court’s ruling with two invalid recess appointees and only one member confirmed by the Senate. This situation is leaving those in the labor community to wonder if the cases being decided are valid and have to be followed.
It was expected the Administration would seek to have clarity and final say on this issue; however, it is curious that in a quick read of the petition, the Administration argues that the appointments are valid based on decades of precedent established by former Presidents, cites the British House of Commons Parliamentary practice from 1772, the Articles of Confederation from 1781 and the Constitutional Convention of 1787. It will now be up to the Supreme Court to settle this dispute once and for all.
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