The Obama administration is calling on the Supreme Court to review the ruling that knocked down the president's controversial recess appointments to the National Labor Relations Board (NLRB).
Administration lawyers decided against filing their appeal at the U.S. Court of Appeals for the D.C. Circuit, the court that ruled against them this past January.
The decision was announced in a statement from the NLRB.
"The board, in consultation with the Department of Justice, intends to file a petition for certiorari with the United States Supreme Court for review of that decision. The petition for certiorari is due on April 25, 2013," said the labor board in its statement.
That court had found that three recess appointments made to the board — Sharon Block, Richard Griffin and Terence Flynn — were unconstitutional.
Critics of President Obama's decision to recess-appoint the members in January 2012 argue that the Senate was in session at the time. The White House has disagreed, saying the upper chamber was holding pro forma sessions just to prevent the president from acting, and was actually in recess.
President Obama has already re-nominated Block and Griffin to the NLRB. Flynn resigned last year after an ethics flap, in which he denied wrongdoing.
The case will be a test of Obama's use of executive power and could have implications at the NLRB and other agencies. Richard Cordray, the head of the Consumer Financial Protection Bureau, was included in the same block of recess appointments with the labor board members.
Republicans and business groups have battled against the NLRB under the Obama administration, arguing its policies and decisions favor unions. Several groups have begun to say that decisions made by Block and Griffin at the labor board are not valid, citing the appeals court ruling that their recess appointments were unconstitutional.
The U.S. Chamber of Commerce, which joined in the original lawsuit, said it was pleased that the administration was seeking Supreme Court review of the appeals court decision.
"I am pleased that the government announced it will seek U.S. Supreme Court review of the recess appointments case we briefed and argued on behalf of our member, the Noel Canning Corporation, in the D.C. Circuit. The government's decision to seek Supreme Court review is an important step toward resolving the tremendous uncertainty created by the controversial recess appointments," said Tom Donohue, the Chamber's president and CEO, in a statement.