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Court bypasses recess officials issue

The Supreme Court refused on Wednesday afternoon to be drawn into the developing constitutional controversy over the President’s authority to make temporary appointments of government officials.  Without explanation, in a brief order, the Court refused to delay a lower court order growing out of a strike by labor union members at nursing homes in Connecticut.

The Justices’ action, taken without a noted dissent, left intact an order by a federal judge requiring the reinstatement of some 700 striking workers.  The judge had acted at the request of a regional officer who was acting for the National Labor Relations Board.  The temporary  appointments of three members of the Board by President Obama have been ruled unconstitutional by the D.C. Circuit Court.  Without those members, the Board would lack a quorum and thus the authority to take any action.

Justice Samuel A. Alito, Jr., took no part in Wednesday’s action, without giving any reason.  However, news stories have noted that his sister, Rosemary Alito of Newark, N.J., is one of the attorneys representing HealthBridge Management Co., the operator of the four nursing homes hit by the strike.

HealthBridge Management had gone to the Supreme Court with a plea to put on hold the federal judge’s striker-reinstatement order, pending an appeal by the nursing home company to the Second Circuit Court.  The company contended that the NLRB was without authority to seek such an order from the judge, because of the constitutional doubt hanging over three of its members’ appointments.  The company also said that the reinstatement would put back to work in its centers employees who took part in “medical sabotage” as they were going out on strike, endangering patients’ health.

As an alternative move, the company asked the Supreme Court to bypass the lower courts, and take on itself now the issue of whether the Board’s appointees were validly sitting and validly acting.   Thus, the Court’s refusal to delay the judge’s order means, as a practical matter, that the Justices have chosen to remain on the sidelines of that constitutional controversy as it continues to develop in some 30 pending cases in lower courts around the country.

HealthBridge had argued that the constitutional issue was going to reach the Justices soon anyway, and so there was no reason to delay in taking up the question.

In its ruling that the three Board members did not have constitutionally valid appointments, the D.C. Circuit decided that presidents may make temporary appointments to vacant government positions only when the Senate is in a formal recess at the end of a session of Congress, and can only fill such vacancies that had actually occurred during such a recess.   The Obama appointments, made in a brief recess in January of last year, were made when the Senate was not in a formal end-of-session recess, according to the Circuit Court.

The Obama Administration is expected to take that question to the Supreme Court in one or more cases in the future.  The Library of Congress released an analysis this week of what the Circuit Court decision would have meant had the limitations it imposed been operating since the presidency of Ronald Reagan: nearly 700 temporary appointments that were made would have been invalid.

The HealthBridge application for help from the Supreme Court involved the validity of the three NLRB members’ appointments only in a somewhat indirect manner: the Board had authorized its general counsel to seek a court order reinstating the striking workers, and the general counsel had told the Board’s regional director to actually go to court to get the order.

Federal labor law gives the NLRB the authority to seek temporary court orders during labor disputes, if that is necessary to protect the Board’s jurisdiction to decide a case pending before it.   The Board has under review a number of unfair labor practices complaints growing out of the dispute at HealthBridge’s Connecticut nursing homes.

The start of that chain of official actions — the Board’s decision to seek the court order — was the source of HealthBridge’s claim that the judge’s ultimate order did not have a valid foundation.

The Justices’ denial of a stay was taken apparently without any request for a reaction by the NLRB, thus suggesting that the Court felt the issue was clear without that broader kind of exploration.   Justice Ruth Bader Ginsburg, acting alone, had denied HealthBridge’s application earlier this week.  The company then refiled it with Justice Antonin Scalia, who then shared it with the other Justices, resulting in an order from the full Court (except for Justice Alito).


Recommended Citation: Lyle Denniston, Court bypasses recess officials issue, SCOTUSblog (Feb. 6, 2013, 5:44 PM),