Tuesday, March 12, 2013
The NLRB announced today that, in consultation with the Department of Justice, it would not seek en banc review of Noel Canning before the D.C. Circuit and would, instead, go directly to the Supreme Court with a cert. petition. This is not a surprise at all; no matter what the full D.C. Circuit said, the Supreme Court would likely need to resolve this issue (it's possible that if the full circuit reversed the panel, Supreme Court review might be avoided in this case, but this issue isn't going away). One can't say for sure that the Court will take the case, but I'd be shocked if they didn't given the importance of the issues involved. So stay tuned for what will likely be the NLRB acting as a proxy for a big battle between executive and legislative (via the Senate) power.