Spreading challenge to appointment power (UPDATED)
The spreading constitutional controversy over President Obama’s use of the power to appoint government officials when the Senate is not in full session has now reached all but three of the federal courts of appeals, with thirty separate challenges. So far, only one of the cases has been decided — the overwhelming defeat of the President’s position by the D.C. Circuit Court last Friday. One other appeals court has ruled on a case, but found it had no authority to decide the appointments issue because no one had a right to test that in the case. All of these cases test the issue over appointments of three members of the National Labor Relations Board. No cases involving other such appointments have yet reached the appeals court level.
Ultimately, this core separation-of-powers issue seems sure to go to the Supreme Court, no matter how remaining cases turn out, since the D.C. Circuit ruling already is in conflict with other appeals courts on the basic constitutional questions at stake. Whether the Obama administration decides to seek Supreme Court review in the D.C. Circuit case, or in one to emerge from another court on the NLRB seats, will be decided by the U.S. Solicitor General’s office.
Below the jump is a compilation of the pending challenges, based on information from the NLRB. Cases from that agency go directly to an appeals court, bypassing a federal trial court.
D.C. Circuit — fifteen other challenges pending, most if not all of which will be decided on the basis of last Friday’s ruling. The cases are either in the briefing stage, or awaiting a briefing schedule.
Second Circuit — one case, in briefing.
Third Circuit — three cases, one set for argument March 19 (NLRB v. New Vista Nursing, docket 11-3440); one case being held for that case, another in briefing.
UPDATED 1-29-13: Fourth Circuit — four cases, one set for argument March 22 (NLRB v. Enterprise Leasing Co. SE, docket 12-1514); others in briefing.
Fifth Circuit — one case, in briefing.
Sixth Circuit — one case, in briefing.
Seventh Circuit — two cases: one decided, but not on the merits of the appointments power; one in briefing.
Ninth Circuit — one case, in briefing.
Eleventh Circuit — one case, in briefing.
The only federal appeals courts in which no such cases are pending are the First, Eighth, and Tenth. (An issue like this would not go to the U.S. Court of Appeals for the Federal Circuit.)
Recommended Citation: Lyle Denniston, Spreading challenge to appointment power (UPDATED), SCOTUSblog (Jan. 28, 2013, 4:30 PM), http://www.scotusblog.com/2013/01/spreading-challenge-to-appointment-power/