by Deepak Gupta
Earlier than many had expected, a challenge to President Obama's recess appointments reached the doorstep of the U.S. Supreme Court this morning, but it was quickly rebuffed this afternoon by Justice Ginsburg in her capacity as Circuit Justice for the Second Circuit. Justice Ginsburg did not request a response or refer the application to the full Court.
Today's challenge came in the form of an emergency application filed by Paul Clement on behalf of an employer in a labor dispute. The employer sought a stay of a district court injunction ordering the reinstatement of striking workers. The district court issued the order under a National Labor Relations Act provision authorizing injunctive relief to protect the NLRB's
jurisdiction while the board decides whether to take action. Clement's application argues that “[i]t makes little sense for lower courts
to order immediate action at the behest of the Board when the Board’s
ability to act is in profound doubt and will be addressed by this
Court. … The validity of the President’s recess appointments to the Board
is a question that will inevitably and quickly find itself before this
Court." He's probably right about that last part; many cases raising the constitutionality of the NLRB recess appointments are now pending before the courts of appeals. As far as I'm aware, none of the court of appeals cases directly challenge the CFPB appointment and the only direct court challenge to the Cordray appointment is in the Big Spring case, in which the plaintiffs lack standing.