Appeals court unanimously rebukes Obama on recess appointments; Update: Most recess appointments no longer legit?

posted at 11:31 am on January 25, 2013 by Ed Morrissey

It took more than a year, but a federal appeals court has finally caught up with Barack Obama and his unilateral declaration of a Congressional recess.  In an embarrassing rebuke, the DC Circuit Court of Appeals ruled that Obama violated the Constitution by making appointments while the Senate considered itself in session:

President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel, a federal appeals court panel ruled Friday.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board.

And as the AP also points out, the decision was unanimous … and embarrassing:

The unanimous decision is an embarrassing setback for the president, who made the appointments after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions.

The ruling means that a full year of work from the NLRB will go down the tubes, if the Supreme Court upholds this ruling.  The three appointments allowed the panel to form the quorum necessary to pass decisions.  Now every ruling made by the NLRB will be delegitimized as soon as those harmed by the rulings take this into court.  What a mess — and an unnecessary mess at that:

The Obama administration is expected to appeal the decision to the U.S. Supreme Court, but if it stands, it means hundreds of decisions issued by the board over more than a year are invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.

It wasn’t just the three appointments to the NLRB, either.  Obama appointed Richard Cordray to head the new Consumer Financial Protection Bureau, whose appointment ran out when the 112th Session of Congress expired earlier this month.  The appointment is being challenged in a separate case but in the same circuit, which means we can expect a similar ruling.  Obama re-nominated Cordray to the post yesterday:

Four days into his second term, President Obama renewed a fight from his first term when he renominated Richard Cordray for head of the Consumer Financial Protection Bureau.

At a news conference this afternoon, Obama announced he was throwing Cordray, the man currently serving in the post thanks to a recess appointment, into the ring as his pick to direct the government-run financial watchdog.

“He can’t stay on the job unless the Senate finally gives him the confirmation he deserves,” Obama said.

The court ruling gives Senate Republicans more than enough political cover to proclaim Cordray’s nomination entirely inappropriate, and start working to block it.  And now that the Senate has resolved the filibuster-reform fight with it largely intact, expect them to use it on Cordray as best as they can.

Update: It’s also worth pointing out what a monumental screw-up this was from a historical perspective.  No one has provoked the legislature (and others) to fight over recess appointments in the courts, which meant that the executive branch had considerable gray area in which to operate, at least politically.  No more, if this precedent stands; future Presidents (and the present one) will now be at the Senate’s mercy.

That’s also true of Obama’s decision to invoke executive privilege on behalf of Eric Holder in Operation Fast & Furious.  It will be interesting to see whether the White House wants to press its luck on that score after losing so badly on the recess appointments.

Update II: To underscore the point I was making in the previous update, take a look at pages 17-18 in the opinion.  Not only did Obama unconstitutionally arrogate to himself the ability to determine when the Senate is in session, the court now holds that the appointment power exists only in the formal Recess between sessions:

The appointment may be made in “the Recess,” but it  ends  at  the  end  of  the  next  “Session.”  The  natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.”  Either the Senate is in session, or it is in the recess.  If it has broken for three days within an ongoing session, it is not in “the Recess.”

It is universally accepted that “Session” here refers to the  usually two  or  sometimes  three sessions  per  Congress. Therefore,  “the Recess” should be taken to mean only times when the Senate is not in one of those sessions.

Not only that, but the court also ruled that the vacancies had to arise during The Recess as well (page 23):

To avoid government paralysis in those long periods when senators were unable to provide  advice and  consent,  the  Framers  established  the “auxiliary” method of recess appointments.  But they put strict limits  on this  method,  requiring that  the  relevant  vacancies happen during “the Recess.”  It would have made little sense to extend this “auxiliary” method to any intrasession break, for the “auxiliary”  ability to make recess  appointments  could  easily swallow  the  “general”  route  of  advice and  consent.  The President could simply wait until the Senate took an intrasession break  to make  appointments,  and  thus  “advice  and  consent” would hardly restrain his appointment choices at all.

Wow.  If this stands, the recess appointment will all but disappear — and future Presidents can thank Obama for screwing that up for them.


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Constitutional Violation after Constitutional Violation – WHEN WILL THE GOP / ANYONE MOVE TO IMPEACH THIS PRESIDENT?

easyt65 on January 25, 2013 at 1:04 PM

Ima riot!

Mr. Arrogant on January 25, 2013 at 3:34 PM

Good. I was born into a Republic. My ancestors died to start and then to protect this Republic. He may try to change this into a kingdom, but I am not the subject of a king named Barack Obama. He is the servant of the public and must obey the laws as I do, not the other way around.

txmomof6 on January 25, 2013 at 3:37 PM

But, but, but he’s a light worker and a constitutional scholar! We knows this because the media says so!

jawkneemusic on January 25, 2013 at 11:35 AM

But, but, but…CONSTITUTIONAL LAW PROFESSOR and SMARTEST PREZEY EVAH!

CJ on January 25, 2013 at 11:36 AM

Oh.

Well, that changes everything.

Carry on.

/s/

Solaratov on January 25, 2013 at 3:39 PM

Wow. If this stands, the recess appointment will all but disappear — and future Presidents can thank Obama for screwing that up for them.

Republicans were gaming the system to prevent the President from making appointments. He did the right thing by trying to go around them. We’ll see what the Supremes have to say.

Sauce for the goose, etc. Future Republican Presidents (a silly concept, I know) will have no reason to complain if Democrats pull the same stunt on them.

Goes around; comes around.

chumpThreads on January 25, 2013 at 3:41 PM

It is sad to see that racism is still rampant in AmeriKKKa.

CorporatePiggy on January 25, 2013 at 11:44 AM

You forgot the /sarc/ tag.

Solaratov on January 25, 2013 at 3:43 PM

ow. If this stands, the recess appointment will all but disappear — and future Presidents can thank Obama for screwing that up for them.

This has to be one of the dumbest things Ed has ever written (just behind his recommendation of brewer for VP). If the practice is in fact unconstitutional, shouldn’t he be glad that it won’t be used again?

red_herring on January 25, 2013 at 3:43 PM

Obama shrugs. “Oh well, that one didn’t stick. I’ve thrown so much against the wall that has stuck and will remain so that this one does not matter. Let the transformation, a.k.a. Constitutional shredding, continue!”

Carnac on January 25, 2013 at 3:46 PM

Republicans were gaming the system to prevent the President from making appointments. He did the right thing by trying to go around them. We’ll see what the Supremes have to say.

chumpThreads on January 25, 2013 at 3:41 PM

He did not do the right thing. What you fail to comprehend is that the Senate was NOT in recess. Like Bush and other presidents, Obama could have made recess appointments WHEN THE SENATE WAS IN RECESS. And, puhlease, do not say that nothing was being done in the pro forma sessions considering the FACT that the payroll tax cut extension was passed during the pro forma session.

The House never passed a resolution consenting to a Senate recess of more than 3 days and remember that Obama claimed they were in regular recess.

Additionally, Obama nominated the 3 individuals to the NLRB on 14 December 2011. He then “non-recess-recess” appointed them 3 weeks later….before the nominees had submitted all of their documents OR Harry Reid had even scheduled a hearing, debate or confirmation vote.

So what we have here is: Obama decided and has now put in jeopardy a year’s worth of work by the NLRB. Only 3 years ago, the Supreme Court invalidated more than 600 NLRB decisions because the Board had acted without a quorum, New Process Steel v. NLRB, 130 S. Ct. 2635 (2010).

Presidents just don’t get to do whatever they want. During the Korean war, the steel industry was plagued with strikes, which were affecting production of war materiel. Truman decided that, since he was Commander-in-Chief and the country was in the middle of fighting a war, he would just nationalise the industry via EO. He was EPICALLY slapped down by the Warren Court, which no one with any knowledge can argue was a “conservative” court. See: Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

If Truman couldn’t act in contravention of the 5th Amendment (The Takings Clause) during a war, why on earth would Obama or anyone else think that he, representing the Executive Branch, can decide when Congress – the Legislative Branch – is in session and make “non-recess-recess appointments” a mere 3 weeks after he nominated the 3 individuals?

There was NO recess; therefore, there can be NO recess appointments. If Obama cannot abide by the Constitution, recognise that there are 3 co-equal branches of government, acknowledge the separation of powers, and WAIT FOR MORE THAN THREE BLOODY, F*CKING WEEKS to obtain the advice and consent of the Senate, then he needs to resign and do something else with his life.

He rolled the bones and lost, but not before doing great harm to his office because now presidents may be limited to making recess appointments ONLY during the intersession recess.

Heckava job, Barry!

Resist We Much on January 25, 2013 at 3:54 PM

Republicans were gaming the system to prevent the President from making appointments. He did the right thing by trying to go around them. We’ll see what the Supremes have to say.

Goes around; comes around.

chumpThreads on January 25, 2013 at 3:41 PM

See Resist We Much at 3:32.

Who exactly was gaming the system ?

Jabberwock on January 25, 2013 at 3:56 PM

The slide downhill for 0 is beginning!

Wake Up People!!

Scrumpy on January 25, 2013 at 12:20 PM

Don’t get carried away.

It’s one victory that the pimp-in-chief will probably ignore, anyway.

And he’s got a LOT more disappointment in store for us.

Gird yer loins!!

Solaratov on January 25, 2013 at 3:57 PM

Wow. If this stands, the recess appointment will all but disappear — and future Presidents can thank Obama for screwing that up for them.

Screwing that up? How about everyone should be thanking the Judicial Branch for standing for the Constitution and not with our legislators looking for loopholes to placate those in the Executive Branch.

This is how it should be. Every future president should be thankful the Constitution is being upheld instead of being circumvented.

ButterflyDragon on January 25, 2013 at 3:57 PM

Republicans were gaming the system to prevent the President from making appointments. He did the right thing by trying to go around them. We’ll see what the Supremes have to say.

Sauce for the goose, etc. Future Republican Presidents (a silly concept, I know) will have no reason to complain if Democrats pull the same stunt on them.

Goes around; comes around.

chumpThreads on January 25, 2013 at 3:41 PM

Except that, under previous Republican Presidents, the Obama Party and Barack Obama himself were screaming that recess appointments were unconstitutional.

So all you’re doing, Chumpy, is showing how a) hypocritical Barack Obama is and b) how hypocritical you are.

But that’s typical. No one here seriously believes that you think the Constitution is anything other than an obstacle to be ignored for the glory of Barack Obama. Indeed, Obama supporters like yourself regularly exhort Obama to just rule as a dictator.

Man up and accept your party’s views. You worship Obama and think the Constitution should be ignored.

northdallasthirty on January 25, 2013 at 3:57 PM

The Constitution’s separation of powers features, of which the Appointments Clause is one, do not simply protect one branch from another. These structural provisions serve to protect the people, for it is ultimately the people’s rights that suffer when one branch encroaches on another.

cptacek on January 25, 2013 at 4:02 PM

Autoplaying Video Ads that make noise = Crap

p0s3r on January 25, 2013 at 4:02 PM

Please do something about the auto playing ads that make noise?

Coming to this website is going to get me in trouble at work.

p0s3r on January 25, 2013 at 4:03 PM

Considering it’s been years since the Senate did the fundamental tasks of creating & passing a budget, I’d say they have pretty much been in Recess all along.

KS Rex on January 25, 2013 at 4:05 PM

Please do something about the auto playing ads that make noise?

Coming to this website is going to get me in trouble at work.

p0s3r on January 25, 2013 at 4:03 PM

Turn off those things that the noise comes out of.

Jabberwock on January 25, 2013 at 4:06 PM

I have been pointing this out to you guys for more than a year, along with the fact that Harry Reid wasn’t even given the time to schedule hearings or a vote before Obama made his “non-recess-recess appointments; yet, you continue to blame Republicans.

Again, your problem is with the Constitution, not a political party. As for me, I’m glad the COTUS is the way that it is. Recess appointments were only permitted because the Founders recognised that Congress could not just be told to show up and give their advice and consent when travel was so very slow. A great illustration of this problem and the problem with recess appointments, in general, is George Washington’s recess appointment of an alcoholic and mentally ill man, John Rutledge, to become the Chief Justice of the Supreme Court.

There is a reason for obtaining the advice and consent of the Senate. We want to know who is being put into positions of power. In the instant case, as I have indicated, the nominees hadn’t even completed their document submissions when Obama bypassed the Senate. What if evidence would have come to light that connected a nominee to, say, Boeing? Would that be fair to labour? Wouldn’t you want to know?

Resist We Much on January 25, 2013 at 4:14 PM

Watch Obama, he doesn’t play well with others and is likely to keep trying to circumvent the law by ordering the NLRB to make as many unilateral decisions as possible before the Supremes have a chance to rule.

bflat879 on January 25, 2013 at 4:14 PM

Republicans were gaming the system to prevent the President from making appointments.

We’ll see what the Supremes have to say.

chumpThreads on January 25, 2013 at 3:41 PM

Your Democrats gamed the system for 2 years to prevent Estrada from becoming a Judge. The result? The Republicans nominated someone in Estrada’s place, who was OK’d by your side. That replacement was one of the 3 Activist Judges writing today’s ruling. As you say, what goes around, comes around.

As for the Supremes, what makes you even think they will take this case to begin with? After all, Kagen automatically has to recuse herself.

Incomplete

Del Dolemonte on January 25, 2013 at 4:15 PM

Wow. If this stands, the recess appointment will all but disappear — and future Presidents can thank Obama for screwing that up for them.

Well he did want to be a consequential transformational sort of guy.

Ukiah on January 25, 2013 at 4:15 PM

Ann coulter is on Hannity backing up the Obama side. She had not heard of the ruling today.

karenhasfreedom on January 25, 2013 at 4:18 PM

As for the Supremes, what makes you even think they will take this case to begin with? After all, Kagen automatically has to recuse herself.

Incomplete

Del Dolemonte on January 25, 2013 at 4:15 PM

I don’t think she has to automatically. Doesn’t she get to decide if she will recuse herself?

cptacek on January 25, 2013 at 4:19 PM

As for the Supremes, what makes you even think they will take this case to begin with? After all, Kagen automatically has to recuse herself.

Incomplete

Del Dolemonte on January 25, 2013 at 4:15 PM

I don’t think she has to automatically. Doesn’t she get to decide if she will recuse herself?

cptacek on January 25, 2013 at 4:19 PM

As Solicitor General she argued this case for Dear Leader.

Del Dolemonte on January 25, 2013 at 4:21 PM

As Solicitor General she argued this case for Dear Leader.

Del Dolemonte on January 25, 2013 at 4:21 PM

Yes, I agree she should. I just don’t think there is a rule/law that makes her do it.

cptacek on January 25, 2013 at 4:22 PM

Mark Levin made the point that much of What Obama does, Obama knows is unconstitutional but he knows he can play this game of ‘catch me if you can’ because it takes time to catch up in the courts.

jawkneemusic on January 25, 2013 at 11:37 AM

Obysmal truly takes that audacity angle to heart.

onlineanalyst on January 25, 2013 at 4:22 PM

Is arrogate a verb? It probably is, but I’ve never seen it before.

22044 on January 25, 2013 at 1:38 PM

ar·ro·gate
transitive verb \-ˌgāt\
ar·ro·gat·edar·ro·gat·ing
Definition of ARROGATE
1
a : to claim or seize without justification
b : to make undue claims to having : assume
2
: to claim on behalf of another : ascribe
— ar·ro·ga·tion \ˌer-ə-ˈgā-shən, ˌa-rə-\ noun
Examples of ARROGATE

1. They’ve arrogated to themselves the power to change the rules arbitrarily.
2. She arrogated the leadership role to herself.

Solaratov on January 25, 2013 at 4:24 PM

Well with all those flies buzzing around his face the name would be most appropriate!

ChicagoBlue on January 25, 2013 at 1:44 PM

Well, Mooch did say he was pretty “stinky”.

Solaratov on January 25, 2013 at 4:26 PM

Wow. If this stands, the recess appointment will all but disappear — and future Presidents can thank Obama for screwing that up for them.

Republicans were gaming the system to prevent the President from making appointments. He did the right thing by trying to go around them. We’ll see what the Supremes have to say.

Sauce for the goose, etc. Future Republican Presidents (a silly concept, I know) will have no reason to complain if Democrats pull the same stunt on them.

Goes around; comes around.

chumpThreads on January 25, 2013 at 3:41 PM

Little late, there. The Senate did the exact same thing to Bush ALREADY. The difference was that Bush didn’t arrogate to himself the right to declare the Senate in recess when they said they weren’t. It was Obama who ignored the checks and balances in our government and just declared that the Senate was in recess and he could go ahead and make recess appointments.

I’d ask how it makes you feel to realize that Bush is a better man than Obama, but it’s obvious you don’t care. But it seems that you’re ignorant as well as apathetic.

But in fact I do care, and am quite happy that this precedent binds Republican presidents, too. It makes the presidency a little weaker and the Senate a little stronger, and the net effect is that it’s harder for a president to act like a dictator.

There Goes The Neighborhood on January 25, 2013 at 4:27 PM

And now, he should be impeached.

For specifically failing to adhere to the US constitution.

TX-96 on January 25, 2013 at 4:28 PM

“The President, who taught Constitutional law, should’ve known better,” House Oversight Committee Chairman Darrell Issa (R-Calif.) said in a statement. “As the Oversight Committee examined in a hearing a year ago, President Obama’s appointments looked like an obvious election-year pander to big labor bosses.

I guess it worked, then, didn’t it? Obama got re-elected.

And isn’t that really the most important thing? Having a government that operates like a criminal conspiracy is a small price to pay for rich, white liberals to feel better about themselves.

Socratease on January 25, 2013 at 4:31 PM

How funny. A court having to tell someone what the word “the” means.

cptacek on January 25, 2013 at 2:32 PM

Well, we did have one preznit who wasn’t quite sure of the meaning of “is”.

There seems to be a lot of linguistic stupidity on the democRAT side.

Solaratov on January 25, 2013 at 4:36 PM

Tomorrows headline:

Boeing opens new plant in right to work state, closes Seattle operations.

BobMbx on January 25, 2013 at 4:36 PM

Wow. If this stands, the recess appointment will all but disappear — and future Presidents can thank Obama for screwing that up for them.
Republicans were gaming the system to prevent the President from making appointments. He did the right thing by trying to go around them. We’ll see what the Supremes have to say.

Sauce for the goose, etc. Future Republican Presidents (a silly concept, I know) will have no reason to complain if Democrats pull the same stunt on them.

Goes around; comes around.

chumpThreads on January 25, 2013 at 3:41 PM

That’s complete BS

Obama didn’t even wait for his NLRB folks or Donald Berwick to be vetted by their Senate committees before appointing them– committee vetting is controlled by the Dems, this had zero to do with obstruction

You can’t blame a Democrat-controlled Senate for obstruction when Obama didn’t even wait for his nominees to begin the confirmation process, idiot

He just didn’t want embarrassing confirmation hearings and skipped them altogether, which is an unprecented and arrogant abuse of power compared to previous admins

Your inability to understand the basics facts here exposes you as the partisan hack you are

thurman on January 25, 2013 at 4:38 PM

Don’t know if anyone brought this up yet…

The 11th circuit upheld recess appointments during “Intrasession” recesses in 2004 when Bush appointed Judge Pryor to the 11th circuit. They also ruled that vacancies need not arise during the recess in order to be filled. Link here.

It appears that we now have 2 very different rulings. For those who were saying that the SC won’t hear this case, I think we need them to settle this once and for all.

On the whole vacancies must arise during the recess in order to be filled with a recess appointment during that recess, there is an interesting tidbit from the linked decision:

In addition, as we understand the history, early Presidents—when delegates to the Constitutional Convention were still active in government—made recess appointments to fill vacancies that originated while the Senate was in Session. For example, President Washington, during a Senate break in 1789, appointed Cyrus Griffin to fill a judgeship created during a previous Session; and President Jefferson, during a Senate break in 1801, appointed three judges to fill vacancies created during a previous Session.

Hard to argue with that, even if it does go against a plain reading/originalist interpretation of the Constitution.

weaselyone on January 25, 2013 at 4:38 PM

Update: Most recess appointments no longer legit?

And of course this rather begs the question of whether the decisions of the NLRB, were legal. After all, if the court’s decision holds, one may argue that the board’s actions are not legally binding given that it was constituted with three improperly appointed members. It would be fascinating if all of the NLRB’s decisions can now be ignored.

corbeck on January 25, 2013 at 4:38 PM

Mark Levin made the point that much of What Obama does, Obama knows is unconstitutional but he knows he can play this game of ‘catch me if you can’ because it takes time to catch up in the courts.

jawkneemusic on January 25, 2013 at 11:37 AM

That, and having a completely partisan, corrupt media apparatus who refuses to hold him accountable, allows him to get away with it

thurman on January 25, 2013 at 4:39 PM

Sauce for the goose, etc. Future Republican Presidents (a silly concept, I know) will have no reason to complain if Democrats pull the same stunt on them.

Goes around; comes around.

chumpThreads on January 25, 2013 at 3:41 PM

You didn’t read the ruling. There isn’t any gaming allowed now.

The Senate must be in recess, concurred by the House. The vacancy must occur during the recess. The President cannot wait to fill a vacancy until the Senate recesses, nor leave the vacancy open through a session.

Oh, and the POTUS does not decide when the Senate is in recess.

BobMbx on January 25, 2013 at 4:40 PM

weaselyone, this was addressed in the recent opinion:

It appears that the first President, who took
office shortly after the ratification, understood the recess
appointments power to extend only to vacancies that arose
during senatorial recess. More specifically, President
Washington followed a practice that strongly suggests that he
understood “happen” to mean “arise.” If not enough time
remained in the session to ask a person to serve in an office,
President Washington would nominate a person without the
nominee’s consent, and the Senate would confirm the individual
before recessing. See Rappaport, supra, at 1522. Then, if the
person declined to serve during the recess, thereby creating a
new vacancy during the recess, President Washington would fill
the position using his recess appointment power. Id. If
President Washington and the early Senate had understood the
word “happen” to mean “happen to exist,” this convoluted
process would have been unnecessary.

page 33

The Evans majority also relied on a handful of recess
appointments supposedly made by Presidents Washington and
Jefferson to offices that became vacant prior to the recess. Id.
at 1226 (majority opinion). Subsequent scholarship, however,
has demonstrated that these appointments were “in fact
examples of the practice of appointing an individual without his
consent and then, if he turns down the appointment during the
recess, making a recess appointment at that time.” Rappaport,
supra, at 1522 n.97. Again, as with the appointments by
President Washington referenced above, the use of this
convoluted method of appointment demonstrates that early
interpreters read “happen” as “arise.”

page 37/38

cptacek on January 25, 2013 at 4:42 PM

Update: Most recess appointments no longer legit?

Here’s an interesting question: Since the court voided NLRB decisions based on the lack of a quorum through the flawed recess appointments, are there other recess appointments that were made that don’t comply with the Appeals Court definition of a “recess appointment”, and if so, can those appointments (or more importantly, decisions made) also be voided?

The NLRB decisions are voided retroactively; why not every other appointment/decsion?

BobMbx on January 25, 2013 at 4:43 PM

NRLB is now stating they will not abide by the ruling.

http://washingtonexaminer.com/nlrb-we-will-continue-to-act-despite-the-appeals-court-decision/article/2519736?custom_click=rss#.UQL5zpWuUlE

Nice.

Mr. Arrogant on January 25, 2013 at 4:44 PM

cptacek on January 25, 2013 at 4:42 PM

Thanks, I admit I haven’t actually read the new ruling as of yet…just the highlights that Ed had written here.

The issue still remains though. We have 2 opinions differing from each other. I for one would like to see the SC take this up, soooner rather then later.

weaselyone on January 25, 2013 at 4:46 PM

Here’s an interesting question: Since the court voided NLRB decisions based on the lack of a quorum through the flawed recess appointments, are there other recess appointments that were made that don’t comply with the Appeals Court definition of a “recess appointment”, and if so, can those appointments (or more importantly, decisions made) also be voided?

The NLRB decisions are voided retroactively; why not every other appointment/decsion?

BobMbx on January 25, 2013 at 4:43 PM

According to Jay Carney, there have been 285 “intrasession” recess appointments between 1867 and 2004.

weaselyone on January 25, 2013 at 4:48 PM

weaselyone on January 25, 2013 at 4:48 PM

Lets indulge in a bit fantasy. Suppose all non-compliant appointments are subject to being voided.

Would we start with the most recent, or with the oldest first?

Wouldn’t it be delicious if we started with the oldest one, and measured the effect of each, and then determined that the EPA is unconstitutional?

Who knows? It could happen.

BobMbx on January 25, 2013 at 4:53 PM

The issue still remains though. We have 2 opinions differing from each other. I for one would like to see the SC take this up, soooner rather then later.

weaselyone on January 25, 2013 at 4:46 PM

Yes, I agree with you there :)

cptacek on January 25, 2013 at 4:53 PM

Isn’t Obama already in contempt of a different court over the issuing of drilling rights in the Gulf? Has anything happened to him over that? Will anything happen to him over this ruling?

Please tell me that this one will stand.

francesca on January 25, 2013 at 4:56 PM

The Amicus Brief from the Senators was filed by Miguel Estrada, who, as you may recall, had been blocked by Senate Democrats in 2001 when George W. Bush nominated him to the same United States Court of Appeals for the District of Columbia Circuit because Latinos can be wise only if they are female liberals.

Fausta Wertz on January 25, 2013 at 5:03 PM

If this stands, the recess appointment will all but disappear — and future Presidents can thank Obama for screwing that up for them.

Another job well done by The Constitutional Scholar!

Another Drew on January 25, 2013 at 5:04 PM

Oh boy. Obama to embarrass the Appeals Court Justices at the SOTU . . .

BigAlSouth on January 25, 2013 at 5:05 PM

Oh boy. Obama to embarrass the Appeals Court Justices at the SOTU . . .

BigAlSouth on January 25, 2013 at 5:05 PM

Lets get a kitty going for Joe Wilson. We need to find out how much he wants to yell out “YOU VIOLATED THE CONSTITUTION”.

Is Wilson still in the House?

BobMbx on January 25, 2013 at 5:11 PM

FYI

CNN story tag on the ruling on their website

Court dings three Obama hirings

MSNBC story tag on the ruling on their website

White House sees no impact of court ruling on finance board

Isn’t it good they are providing impartial news coverage?

talkingpoints on January 25, 2013 at 5:12 PM

So what do these appointees-or-not-depending-on-your-interpretation-or-care-of-constitutionality do now? Do they resign? Just stop showing up? Show up but don’t do anything because it will be overturned and still get paid? Keep doing their thing, secure in the knowledge that Obama doesn’t care so why should they?

cptacek on January 25, 2013 at 5:15 PM

Isn’t Obama already in contempt of a different court over the issuing of drilling rights in the Gulf? Has anything happened to him over that? Will anything happen to him over this ruling?

Please tell me that this one will stand.

francesca on January 25, 2013 at 4:56 PM

If this ruling is upheld on appeal to the USSC then those appointments would be vacated and any acts of the NLRB while they were in office would be invalid if challenged. But nothing happens to Obama himself.

talkingpoints on January 25, 2013 at 5:16 PM

Were these appointees the ones that were giving Boeing so much grief? Can Boeing start litigation on some of the NLRB actions over the past year?

talkingpoints on January 25, 2013 at 5:18 PM

And – *BaM* – there it is. Business will continue as usual pending a SCOTUS ruling – just like I said earlier.

The NLRB intends to ‘ignore’ the courts decision:

NLRB: We will continue to act despite the Appeals Court decision

Statement by Chairman Pearce on recess appointment ruling

January 25, 2013
Contact:
Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
http://www.nlrb.gov

Today, the U.S. Court of Appeals for the DC Circuit issued a decision finding that the Jan. 4, 2012 recess appointments of three members to the National Labor Relations Board were invalid. In response, Chairman Mark Gaston Pearce issued the following statement:

“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

SD Tom on January 25, 2013 at 5:22 PM

And – *BaM* – there it is. Business will continue as usual pending a SCOTUS ruling – just like I said earlier.

The NLRB intends to ‘ignore’ the courts decision:

Statement by Chairman Pearce on recess appointment ruling

January 25, 2013
Contact:
Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
http://www.nlrb.gov

Today, the U.S. Court of Appeals for the DC Circuit issued a decision finding that the Jan. 4, 2012 recess appointments of three members to the National Labor Relations Board were invalid. In response, Chairman Mark Gaston Pearce issued the following statement:

“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

SD Tom on January 25, 2013 at 5:24 PM

And – *BaM* – there it is. Business will continue as usual pending a SCOTUS ruling – just like I said earlier.

The NLRB intends to ‘ignore’ the courts decision:

Statement by Chairman Pearce on recess appointment ruling

January 25, 2013
Contact:
Office of Public Affairs
202-273-1991

Today, the U.S. Court of Appeals for the DC Circuit issued a decision finding that the Jan. 4, 2012 recess appointments of three members to the National Labor Relations Board were invalid. In response, Chairman Mark Gaston Pearce issued the following statement:

“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

SD Tom on January 25, 2013 at 5:26 PM

Resist We Much on January 25, 2013 at 4:14 PM

Oops! That was directed at chumpThreads.

Resist We Much on January 25, 2013 at 5:28 PM

NLRB: We will continue to act despite the Appeals Court decision

January 25, 2013 | 4:18 pm

Mark Gaston Pearce, chairman of the National Labor Relations Board, issued the following statement in reaction to today’s DC Appeals Court decision that President Obama use of recess appointments to install three people on the NLRB last year was unconstitutional. The action renders the board without a quorum to act and potentially invalidates a year’s worth of actions and rulings by it. Pearce indicated that the NLRB will attempt to continue on regardless:

The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.

Pearce, in short, is indicating that the NLRB’s strategy is to act as if the court’s ruling that the appointments were unconstitutional somehow only applies only to the particular case that went before the Appeals Court and hope that the White House can get the Supreme Court to quickly review the case.

It’s a pretty brazen strategy, but consistent with a broader administration strategy to simply ignore the court’s ruling.

SD Tom on January 25, 2013 at 5:29 PM

White House: Court’s recess appointment ruling has ‘no impact’ on NLRB operations

January 25, 2013 | 2:13 pm | Modified: January 25, 2013 at 2:35 pm

President Obama’s spokesman denounced the invalidation of the so-called ‘recess’ appointments as a “novel and unprecedented ruling,” adding that the decision has “no impact on the ongoing operations of the National Labor Relations Board (NLRB).

“The decision is novel and unprecedented,” White House Press Secretary Jay Carney said during the press briefing. “It contradicts 150 years of practice by Democratic and Republican administrations. so, we respectfully but strongly disagree with the ruling.” Carney said that over 280 intrasession recess appointments have been made since 1867.

Obama made the appointments at a time when, by Senate rules, Congress was in session. “An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction,” the D.C. Circuit Court ruled. “This cannot be the law.”

Carney said that the ruling would not impede the NLRB’s work. “It does not have any impact, as I think the NLRB has already pointed, out on their operations or functions,” he said, adding that “it has no bearing on Richard Cordray . . . It simply doesn’t as a legal matter. I’m not going to predict what happens in the future, but in terms of this case, it does not bear on Mr. Cordray.”

Cordray was ‘recess appointed’ to lead the Consumer Financial Protection Bureau on the same day as the NLRB appointees. “It’s one court, one case, one company,” Carney said.

Senate Republicans joined the lawsuit in this case to oppose the NLRB appointments. “This decision now casts serious doubt on whether the President’s ‘recess’ appointment of Richard Cordray to the Consumer Financial Protection Bureau, which the President announced at the same time, is constitutional,” Senate Minority Leader Mitch McConnell said in a statement today.

SD Tom on January 25, 2013 at 5:32 PM

Holy Mackerel!

Those links got boogered up bigtime.

LoL

SD Tom on January 25, 2013 at 5:33 PM

Goes around; comes around.

chumpThreads on January 25, 2013 at 3:41 PM

.
You didn’t read the ruling. There isn’t any gaming allowed now.

The Senate must be in recess, concurred by the House. The vacancy must occur during the recess. The President cannot wait to fill a vacancy until the Senate recesses, nor leave the vacancy open through a session.

Oh, and the POTUS does not decide when the Senate is in recess.

BobMbx
on January 25, 2013 at 4:40 PM

.
The POTUS doesn’t decide when the Senate is in recess ? !

Dammit.

listens2glenn on January 25, 2013 at 5:48 PM

Statement by Chairman Pearce on recess appointment ruling

And BAM, THERE it is — the unquestionably impeachable offense — not reining in his NLRB after they are declared unconstitutionally staffed. Naked and open contempt for the rule of law (once the SCOTUS either agrees or just lets it stand, of course…)

Go git ‘im, boys…

Dirty Creature on January 25, 2013 at 5:53 PM

Sauce for the goose, etc. Future Republican Presidents (a silly concept, I know) will have no reason to complain if Democrats pull the same stunt on them.

Goes around; comes around.

chumpThreads on January 25, 2013 at 3:41 PM

You didn’t read the ruling. There isn’t any gaming allowed now.

The Senate must be in recess, concurred by the House. The vacancy must occur during the recess. The President cannot wait to fill a vacancy until the Senate recesses, nor leave the vacancy open through a session.

Oh, and the POTUS does not decide when the Senate is in recess.

BobMbx on January 25, 2013 at 4:40 PM

lol, don’t confuse the Unit with Facts. It is not programmed to respond in that area.

FYI, chump’s entire 3:41 post is, sadly, ample evidence that he’s relying on MSNBC to do his “thinking” for him. As NewsBusters tells us:

In a segment this morning discussing the breaking news that a panel of judges on the Court of Appeals for the District of Columbia unanimously ruled that some of President Obama’s recess appointments had been made in an unconstitutional manner, MSNBC’s Thomas Roberts turned to network contributor and former Democratic Senate staffer Jimmy Williams for his reaction.

Williams conceded the the court had ruled correctly, but rather than chiding the president for violating his oath of office with unconstitutional appointments, he blamed Senate Republicans for driving Mr. Obama to do so.

-snip-

JIMMY WILLIAMS, MSNBC contributor: Well, Pete’s right. This is — the court ruled correctly. The Senate was not in technical recess. And since the Senate was not in recess, it was not constitutional.

-snip-

But there’s — that’s a short-term victory. The problem with it is this never would have happened had the Republican senators not been filibustering these Republican nominees to begin with.

Must be nice to have others do your thinking for you, eh chump? Saves the heavy lifting, fer sure!

Del Dolemonte on January 25, 2013 at 5:59 PM

That’s a WHOLE lot of VOID cases:
Try Volumes, 358 & 359:
http://www.nlrb.gov/cases-decisions/board-decisions

SkinnerVic on January 25, 2013 at 6:20 PM

Mark levin is all over this. He clarifies stuff so well.

karenhasfreedom on January 25, 2013 at 6:29 PM

Wow, this was great news to end a depressing week, and now the NLRB wants to keep doing their work.

This is oppression, in a nutshell.

What can we do next?

22044 on January 25, 2013 at 6:39 PM

Mark levin is all over this. He clarifies stuff so well.

karenhasfreedom on January 25, 2013 at 6:29 PM

Great, I’ll try to check out the podcast later.

22044 on January 25, 2013 at 6:40 PM

Does this mean that all the 7 regulations CFPB smacked my industry with in JUST THIS LAST WEEK I don’t have to read and implement? Didn’t think so. Oh well.

Cordray’s recess appt may be in jeopardy as is his renomination – but at this point he is a known factor to the mortgage industry. A frenemy if you will…What scares me is who would take his place.

mimi1220 on January 25, 2013 at 7:30 PM

Interesting development, courtesy of Mark Levin’s show:

NLRB Chair Vows Business As Usual Despite DC Circ. Ruling

LooseCannon on January 25, 2013 at 7:32 PM

Hoisted On His Own Petard

M2RB: The Who

Resist We Much on January 25, 2013 at 8:07 PM

Too bad Omarxist didn’t appoint most of the EPA the same way.

Sheee-la,la,la,Jackson wouldn’t have a pot to… well … you know, what to do in.

GreatCommunicator on January 25, 2013 at 8:41 PM

If you read the Constitution, Article II Section 2, last paragraph you will see that all of the recess appointments for many years have been unconstitutional. It says “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Therefore, any vacancies that were there prior to the recess cannot be filled, only those “that may happen during the recess” can be filled. It is amazing that the Constitution was written in such clear and precise language, and yet, so many cannot read and understand it.

savage24 on January 25, 2013 at 9:09 PM

Outstanding!

Next target? The CFPB. If there ever was an unconstitutional organization, it’s that one.

NavyMustang on January 25, 2013 at 9:48 PM

The thin frayed threads that still hold the remnant of our Republic.

AshleyTKing on January 25, 2013 at 9:50 PM

Del Dolemonte on January 25, 2013 at 5:59 PM

Those Senate staffer jack wagons are just hired manipulators of the system. Disgustingly corrupt.

NavyMustang on January 25, 2013 at 9:52 PM

Ironically, here’s where the “living constitution” comes back to bite Obama in the butt.

You sometimes hear people saying, “The Constitution needs to be interpreted in light of changing times. The Founding Fathers didn’t know about [long list of modern technologies that don't actually affect the Constitution goes here].”

Well, the Founding Fathers didn’t know about airplanes. That is, the airplanes that can bring Senators back to Washington, D.C. from even the remotest states in 12 hours. If they had known how easy it would be for Senators to travel back and forth between their home state and Washington, would they have needed to give the President the recess appointment power, to fill vacancies when the Senate was unavailable to confirm people? I doubt it.

J.S.K. on January 25, 2013 at 11:07 PM

No more, if this precedent stands; future Presidents (and the present one) will now be at the Senate’s mercy.

GOOD. That was the way it was supposed to be.

The Rogue Tomato on January 26, 2013 at 12:50 AM

Wow. If this stands, the recess appointment will all but disappear — and future Presidents can thank Obama for screwing that up for them.

Finally. Something Obama did turned out to have a positive effect.

The Rogue Tomato on January 26, 2013 at 12:51 AM

And – *BaM* – there it is. Business will continue as usual pending a SCOTUS ruling – just like I said earlier.

The NLRB intends to ‘ignore’ the courts decision:

SD Tom on January 25, 2013 at 5:26 PM

This was predictable, but they’re just delaying the inevitable – 0dumba has about as much of a chance of winning here in the end as he did in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.

Anti-Control on January 26, 2013 at 12:53 AM

And it names the Activist Judges:

1. Chief Judge David Sentelle-a Certified Villain to the Left for sure.

2. Karen Henderson-Pappy Bush appointee

3. Thomas Griffith-replaced Estrada after the Dems filibustered the latter for 2 years.

Let the Leftist Whining begin…

Del Dolemonte on January 25, 2013 at 12:55 PM

Sentelle (1987) and Henderson (1990) were unanimously confirmed by Democrat-controlled Congresses.

Obama, Biden, Reid and Durbin all voted to confirm Griffith in 2005.

Lefty whiners can suck it.

mnealtx on January 26, 2013 at 3:21 PM

Tomorrows headline:

Boeing opens new plant in right to work state, closes Seattle operations.

BobMbx on January 25, 2013 at 4:36 PM

I sure hope so and I hope it’s near the new place that makes Twinkies.

dogsoldier on January 26, 2013 at 6:18 PM

Goes around; comes around.

chumpThreads on January 25, 2013 at 3:41 PM

Either you’re unintentionally ignorant or deliberately so.

Don’t know which is worse.

itsspideyman on January 26, 2013 at 7:51 PM

Now it’s time for the House to defund the NRLB and the Consumer Financial Protection Board, especially the salaries of these illegal appointees. The House should not appropriate one penny until these agencies comply with the law.

If I were a business affected by any of the rulings by the illegal appointees to the NRLB I would ignore those rulings completely.

sherrimae on January 27, 2013 at 12:14 AM

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