On Tuesday, we reported that attorneys for a Connecticut nursing home company were attempting to have an emergency application challenging the constitutionality of
President Obama’s recess appointments to the National Labor Relations Board referred to
Justice Scalia after it was rejected by Justice Ginsburg.
Yesterday, the emergency application in HealthBridge Management v. Kreisberg was denied by the full U.S. Supreme Court (with Justice Alito not participating). After the application was presented to him, Justice Scalia referred it to the full Court. It has been reported that
Justice Alito did not participate because his sister was one of the attorneys representing the applicant.
The denial of the application suggests that the Supreme Court is not willing to jump into the recess appointment fray before it is presented with a certiorari petition in Canning v. NLRB or another appellate court decision ruling on the validity of the appointments.