The National Labor Relations Board said Tuesday it will ask the U.S. Supreme Court to rule on the constitutionality of recess appointments of its members.
A federal appeals court ruled in January President Barack Obama violated the U.S. Constitution when he appointed three members to the NLRB in January 2012, because the U.S. Senate was not in recess when he made the appointments.
The appointments purportedly provided the NLRB with a quorum, enabling it to conduct official business, but a three-member panel of the U.S. Court of Appeals for the D.C. Circuit -- in a case involving a challenge to an NLRB decision -- ruled the board "did not have a quorum" because the appointments of three new members were "invalid under the Recess Appointments Clause of the Constitution, Article II, Section 2, Clause 3."
The NLRB could have asked the entire appeals court to rehear the case but said in a statement posted to its website Tuesday it will take the matter directly to the Supreme Court.
"The National Labor Relations Board has determined not to seek en banc rehearing in Noel Canning vs. NLRB, in which the U.S. Court of Appeals for the D.C. Circuit held that the Jan. 4, 2012 recess appointments of three members to the board were invalid," the statement said. "The board, in consultation with the Department of Justice, intends to file a petition for certiorari [review] with the United States Supreme Court for review of that decision. The petition for certiorari is due on April 25, 2013."
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