WASHINGTON (Reuters) - Setting the stage for a constitutional showdown, the Obama administration on Thursday urged the Supreme Court to rule that presidents have broad authority to make certain appointments without Senate approval.
If the nine justices agree to hear the dispute over appointments President Barack Obama made to the National Labor Relations Board last year, it will be one of the biggest issues before the court in its next term, which will begin in October and end in June 2014.
In January the U.S. Court of Appeals for the District of Columbia Circuit ruled that three appointments to the panel, which normally has five members, were invalid.
The appeals court agreed with Noel Canning, the bottling company that challenged Obama’s move, in finding that the president did not have the authority to make the NLRB appointments because the Senate was not technically in recess at the time.
The U.S. Constitution allows the president to make appointments when the Senate is in recess. Such appointments expire at the end of the congressional session.
Backed by the U.S. Chamber of Commerce, Noel Canning argued that an NLRB ruling against it was invalid because of the appointments, which meant the board lacked a quorum.
Obama made his NLRB appointments on January 4, 2012, when the Senate was in session but not conducting business. The congressional session began on January 3, according to the Senate website.
In the brief filed on Thursday, Solicitor General Donald Verrilli defended the recess appointment powers of the president, disputing the court’s conclusion that it can only be used in the period between formal sessions of the Senate.
Presidents from both parties have used their recess appointment authority to make appointments when the Senate is not conducting business.
If the appeals court ruling was left to stand, it would “dramatically curtail” the president’s authority, Verrilli said.
In addition to limiting presidential power, the ruling meant that the NLRB did not have the required quorum to make decisions, casting doubt on all its actions and rulings since Obama made the appointments.
The ruling “threatens a significant disruption of the federal government’s operations,” Verrilli wrote.
The high court will decide whether to hear the case after lawyers for Noel Canning file a response, which is due within 30 days.
Reporting by Lawrence Hurley and Amanda Becker; Editing by Howard Goller and Xavier Briand