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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Regarding Cordray, it probably means that all of the work (and possibly appointments of staff) of the CFPB are illegal, since the first head of the agency needed to be in place before the agency could operate. Unbelievable arrogance and stupidity. The CFPB statute will now probably have to be renegotiated to get a new head, with Republicans aiming at congressional budget authority over the agency.

A.S.R. on January 25, 2013 at 12:07 PM

Yeppers. In New Process Steel v. NLRB, 130 S. Ct. 2635 (2010), the Supreme Court found that the NLRB was operating without a quorum. The Court invalidated more than 600 decisions made by NLRB, as a result.

Resist We Much on January 25, 2013 at 12:41 PM

the msdnc outrage is delicious

heh

cmsinaz on January 25, 2013 at 12:42 PM

Forget the partisan conundrum. In reality, this is extremely embarassing for this administration. And if they appeal, my guess is they’ll lose. But to preserve appearances, the Divider may appoint other bipartisan alternate dudes. Just my guess.

tommy71 on January 25, 2013 at 12:43 PM

Count it!

Chuck Schick on January 25, 2013 at 12:45 PM

The unilateral NRLB appointments and Obama’s unconstitutional dictatorial action(s) will stand until at least the end of this final term.

“Preezy of the United Steezy” Barack Hussein Obama is appealing to the SCOTUS.

It will be years before they render a decision – that will do nothing more than shore up his legacy when they inevitably rule in his favor anyway. Especially after he stacks the SCOTUS with even more of his his Constitution loathing sycophants and/or lickspittles during this term and before they decide the appeal.

SD Tom on January 25, 2013 at 12:45 PM

So who gives the cease and desist order to the NLRB? It doesn’t make any sense for them to continue doing any work because of as the court ruling they are basically invalidated. This should be interesting.

rsherwd65 on January 25, 2013 at 12:45 PM

Here is a link to the decision.

It really does put a check on Recess Appointments.

For the appointment to be valid, not only must the Senate be in THE intrasession Recess, as oppose to just during an adjournment, but the vacancy must also HAPPEN or have arisen during The Recess. So, if a vacancy arises while the Senate is in session but goes unfilled, the President cannot fill the vacancy once they go on Recess.

tommylotto on January 25, 2013 at 12:47 PM

So what happens next…?

Seven Percent Solution on January 25, 2013 at 12:49 PM

Obama:

Attaches signing statement to Appeals Court Decision, does not intend to comply.

BobMbx on January 25, 2013 at 12:50 PM

Can’t wait to hear the Great One on radio tonight. I may have to record it.
BobMbx on January 25, 2013 at 12:10 PM

I missed the first 30 minutes of Rush today. I will have to catch the rerun when his app posts it. I set my iPhone alarm to catch Levin tonite – should be a good one.

karenhasfreedom on January 25, 2013 at 12:51 PM

“Preezy of the United Steezy” Barack Hussein Obama is appealing to the SCOTUS.

It will be years before they render a decision – that will do nothing more than shore up his legacy when they inevitably rule in his favor anyway. Especially after he stacks the SCOTUS with even more of his his Constitution loathing sycophants and/or lickspittles during this term and before they decide the appeal.

SD Tom on January 25, 2013 at 12:45 PM

It depends whether the Court grants cert and because of the nature of the case, it may be decided on an expedited basis.

Resist We Much on January 25, 2013 at 12:52 PM

Here is a link to the decision.

It really does put a check on Recess Appointments.

For the appointment to be valid, not only must the Senate be in THE intrasession Recess, as oppose to just during an adjournment, but the vacancy must also HAPPEN or have arisen during The Recess. So, if a vacancy arises while the Senate is in session but goes unfilled, the President cannot fill the vacancy once they go on Recess.

tommylotto on January 25, 2013 at 12:47 PM

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

SD Tom on January 25, 2013 at 12:45 PM

Remember that the real crux of the matter is NOT the Senate’s pro forma sessions, but Article I, Section 5, Clause 4, the Adjournments Clause, which says that neither chamber can take a break of more than three days without the consent of the other:

“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”

The House NEVER passed a resolution consenting to a Senate recess.

Further, the history of the Adjournments Clause and recess appointments make any appointment made during a 3-day recess very dubious and subject to challenge.

Resist We Much on January 25, 2013 at 12:56 PM

A court deciding Obama violates the Constitution?

Maybe there is hope

workingclass artist on January 25, 2013 at 12:57 PM

Barack Hussein Obama is appealing to the SCOTUS.
It will be years before they render a decision

I’d be willing to bet the USSC denies cert and lets the D.C. Circuit decision stand.

tommyboy on January 25, 2013 at 12:58 PM

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

He can’t stay on the job he was unconstitutionally appointed to by Your Honor, Your Honor.

Constitutional law professor my A##.

Tenwheeler on January 25, 2013 at 12:59 PM

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

easyt65 on January 25, 2013 at 1:04 PM

As for the arguments being made by the Left that Obama HAD to act unconstitutionally – “We can’t wait!” – because of Senate Republicans’ “unreasonable use of the filibuster,” it should be noted that Obama nominated the 3 appointments to the NLRB on 14 December 2011 and then made the “non-recess-recess” appointments on 4 January 2012…before the nominees had completed the document submissions and Harry Reid even had a chance to schedule hearings or a vote on the nominations.

That’s a mere THREE WEEKS.

Resist We Much on January 25, 2013 at 1:04 PM

Do the appointees have to return the money they were paid?

Missy on January 25, 2013 at 1:07 PM

“P of the United Steezy” Barack Hussein Obama is appealing to the SCOTUS.

It will be years before they render a decision – that will do nothing more than shore up his legacy when they inevitably rule in his favor anyway. Especially after he stacks the SCOTUS with even more of his his Constitution loathing sycophants and/or lickspittles during this term and before they decide the appeal.

SD Tom on January 25, 2013 at 12:45 PM

The Supreme Court doesn’t work that way. In terms of timelines, they have a strict docket. Cases do not linger for years, even if they grant cert.

Erich66 on January 25, 2013 at 1:08 PM

Good morning all :-)

Scrumpy on January 25, 2013 at 12:10 PM

Channeling Ren & Stimpy……..

Man, THAT’s a flashback.

Tenwheeler on January 25, 2013 at 1:09 PM

unless they’re racist homogenist bigots.

Bishop on January 25, 2013 at 11:51 AM

LOL. Because we all know that only Rethuglicans like their milk (white milk, mind you!) well-mixed and smooth, instead of lumpy! ;)

GWB on January 25, 2013 at 1:10 PM

It will be years before they render a decision – that will do nothing more than shore up his legacy when they inevitably rule in his favor anyway. Especially after he stacks the SCOTUS with even more of his his Constitution loathing sycophants and/or lickspittles during this term and before they decide the appeal.

SD Tom on January 25, 2013 at 12:45 PM

No,over 600 decisions have been overturned with this order…the board is now ineffective and all the ruling the past year have been nullified…

right2bright on January 25, 2013 at 1:10 PM

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

The anti-Midas touch, example #178,453.

rbj on January 25, 2013 at 1:11 PM

Good morning all :-)

Scrumpy on January 25, 2013 at 12:10 PM

Hiya!

Resist We Much on January 25, 2013 at 1:11 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

This is a marxist tactic. Knowingly break the law because they don’t like it and dare everyone to do something about it.

yhxqqsn on January 25, 2013 at 1:14 PM

I feel sorry for his former students. Harvard Law Professor, eh?

-@AsalamaTweetum

Opinionnation on January 25, 2013 at 1:17 PM

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

Really Ed? Why don’t you call him a “doo-doo head” too?

It almost seems like you care less about the Constitution than sticking it to Obama.

No, with that statement, it’s obvious you care less about the Constitution than sticking it to Obama.

segasagez on January 25, 2013 at 1:19 PM

Ed Morrissey: Does that mean any action that was taken by a “recess apointment” that was not created during the recess period is now voidable; if so, could that also affect actions taken by Bush appointtees who did not adhere to this constitutional ruling…

This could open up a lot of litigation about unlawful actions by federal agencies…

RedSoxNation on January 25, 2013 at 1:21 PM

Update II

Way to go dear leader
/

This isn’t the presidents fault…. this is all due to the evil gop filibustering his nominees
-lsm

They seem to forget about Estrada and all the other gop nominees that didnt get a chance

What’s goes around comes around libs

Suck it up

cmsinaz on January 25, 2013 at 1:21 PM

If Obama does anything, he provides lawyers with tons of work opportunities. He should be known as the attorney-full-employment President…

RedSoxNation on January 25, 2013 at 1:22 PM

How is this possible??

Isn’t President Obama a constittuional scholar?

patch on January 25, 2013 at 1:23 PM

Really Ed? Why don’t you call him a “doo-doo head” too?

It almost seems like you care less about the Constitution than sticking it to Obama.

No, with that statement, it’s obvious you care less about the Constitution than sticking it to Obama.

segasagez on January 25, 2013 at 1:19 PM

Really? Although it is pure snark, what in Ed’s comment was untrue or factually incorrect?

weaselyone on January 25, 2013 at 1:23 PM

tommylotto on January 25, 2013 at 12:47 PM

Thanks for the link. This thing really blew up in their faces.

I would point out the DC Circuit is not known for its conservative decisions.

I predict the SC will deny cert.

novaculus on January 25, 2013 at 1:23 PM

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

SCOAMF, indeed.

Bitter Clinger on January 25, 2013 at 1:24 PM

How is this possible??

Isn’t President Obama a constittuional scholar?

patch on January 25, 2013 at 1:23 PM

Kind of like how I’m a rocket scientist.

Bitter Clinger on January 25, 2013 at 1:25 PM

Hmm….. Good whatever to you too, Scrumpy. You woke up so late? The meds are making you loopy for sure. Lol

tommy71 on January 25, 2013 at 1:25 PM

No, with that statement, it’s obvious you care less about the Constitution than sticking it to Obama.

segasagez on January 25, 2013 at 1:19 PM

Typical Liberal, always making it someone else’s fault.

The only person responsible for this clusterfark is the President himself.

Tenwheeler on January 25, 2013 at 1:26 PM

One might expect that the Senator who became famous for voting “PRESENT” would certainly be aware of when work was being done …

/apparently not. Surprise.
/.

CaveatEmpty on January 25, 2013 at 1:27 PM

It depends whether the Court grants cert and because of the nature of the case, it may be decided on an expedited basis.

Resist We Much on January 25, 2013 at 12:52 PM

Exactly, the SCOTUS can decline to hear the case, ending the matter right there with the statement, The U.S. Court of Appeals for the D.C. Circuit decision stands.

SWalker on January 25, 2013 at 1:31 PM

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

Of course, this is based on the assumption that there will be future Presidents after this (P)Resident.

Myron Falwell on January 25, 2013 at 1:31 PM

Really? Although it is pure snark, what in Ed’s comment was untrue or factually incorrect?

weaselyone on January 25, 2013 at 1:23 PM

They don’t have Obama to blame, they have the Constitution to blame right?

segasagez on January 25, 2013 at 1:32 PM

Typical Liberal, always making it someone else’s fault.

The only person responsible for this clusterfark is the President himself.

Tenwheeler on January 25, 2013 at 1:26 PM

So the only reason why future presidents may not be able to make recess appointments as past presidents had is because of Obama?

segasagez on January 25, 2013 at 1:33 PM

Tenwheeler on January 25, 2013 at 1:26 PM

So the only reason why future presidents may not be able to make recess appointments as past presidents had is because of Obama?

segasagez on January 25, 2013 at 1:33 PM

Yes moron, Obama overreached his Constitutional authority and FORCED the Judicial System to CLARIFY what had previously been a gray area of law.

SWalker on January 25, 2013 at 1:36 PM

No,over 600 decisions have been overturned with this order…the board is now ineffective and all the ruling the past year have been nullified…

right2bright on January 25, 2013 at 1:10 PM

I may be incorrect and I may have missed something but if I am understanding everything I’ve been reading on this this morning so far – and historically speaking [if memory serves] – the appointments still stand and things stay as-is until the final appeal concludes – if they actually do appeal – and I believe there is a time limit to do so.

That is notwithstanding any specific orders from the Court to mitigate or freeze any duties and/or functions being performed until finality of the anticipated further appeal(s) to SCOTUS and that would require a pleading/motion from the plaintiff(s) to the Judge who would then grant or deny such a pleading/motion.

I’ve seen no reference to any such pleading/motion from the plaintiffs and a subsequent granting or denial thereof by the Court. It’s not mentioned in the court’s decision unless I missed it in all that legalese gobbledygook – ergo, business as usual continues until the last and final word from the SCOTUS.

SD Tom on January 25, 2013 at 1:37 PM

Do the appointees have to return the money they were paid?

Missy on January 25, 2013 at 1:07 PM

Obama should have to pay it out of his own pocket. He broke the law, he should have to pay restitution to the taxpayers.

Wendya on January 25, 2013 at 1:37 PM

Obama’s recess appointments fail because Obama declared that Congress was in recess. No president in the past has done that, or should be allowed to do it.

22044 on January 25, 2013 at 1:37 PM

Really Ed? Why don’t you call him a “doo-doo head” too?

It almost seems like you care less about the Constitution than sticking it to Obama.

No, with that statement, it’s obvious you care less about the Constitution than sticking it to Obama.

segasagez on January 25, 2013 at 1:19 PM

So how would you defend liberal/Socialists who called Bush a modern-day Hitler (and that’s probably the ONLY thing I can say that ISN’T NSFW) whenever he did something they didn’t like? Just so they could stick it to him and the GOP – there was no other purpose whatsoever…

Oh, wait. Boooooooosh was not one of them, one of ‘their kind,’ therefore it’s okay. It was the finest example of “patriotism”, which, after all, is the highest form of dissent. At least that’s what they bleated out all the time for his entire eight-year term.

Tit for tat. Deal with it, libs.

Myron Falwell on January 25, 2013 at 1:38 PM

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

22044 on January 25, 2013 at 1:38 PM

Who in the WH legal office is going to take the blame for this?

meci on January 25, 2013 at 1:40 PM

I can hope that SCOTUS would be reluctant to overturn this ruling. After all, if the President gets to declare Congress in Recess at his whim, then he would also have the ability to declare SCOTUS in Recess in order to prevent cases in which it has an interest from going forward…….

2nd Ammendment Mother on January 25, 2013 at 1:40 PM

Obama should have to pay it out of his own pocket. He broke the law, he should have to pay restitution to the taxpayers.

Wendya on January 25, 2013 at 1:37 PM

In the end, Obama owes the American public $16,000,000,000 (as of this moment) in restitution. Maybe we can set up a payment plan of 1,000,000,000 monthly installments of $49.95 or something like that.

Myron Falwell on January 25, 2013 at 1:43 PM

Really Ed? Why don’t you call him a “doo-doo head” too?

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

ChicagoBlue on January 25, 2013 at 1:44 PM

After all, if the President gets to declare Congress in Recess at his whim, then he would also have the ability to declare SCOTUS in Recess in order to prevent cases in which it has an interest from going forward…….

2nd Ammendment Mother on January 25, 2013 at 1:40 PM

You mean, like preventing them from considering this case? (As if the SCOTUS had the testicular fortitude to hear it; can you say conflict of interest?)

SWalker on January 25, 2013 at 1:45 PM

There are frequent calls for impeachment of obama. That will never happen for two simple reasosns.

First – The House files charges – Articles of Impeachment, then turns the case over to the Senate for the ‘trial’. Since the Senate is controlled by the president’s party, he would be found not guilty. The House members would lose a lot of ‘political equity’ for a cause they know they would not win.

Second – As soon as Articles of Impeachment are filed, the 47% will riot mindlessly to protect their “Lord and Savior’. (Old news articles indicate that is why obama was never vetted properly, fear of riots.)

While I absolutely think he should be impeached, sadly he will not be and he knows it.

xmanvietnam on January 25, 2013 at 1:48 PM

While I absolutely think he should be impeached, sadly he will not be and he knows it.

xmanvietnam on January 25, 2013 at 1:48 PM

Let us see where the changing winds may blow.

SWalker on January 25, 2013 at 1:52 PM

No Recess, No legitimate appointment.
Now, can we – the taxpayers – force these impostors to give back the salaries they received under false pretenses?

Another Drew on January 25, 2013 at 1:52 PM

Drudge and Gateway pundit are having way too much fun with the Obama forehead fly photo today.

This should be a staple.

Terp Mole on January 25, 2013 at 1:54 PM

Who in the WH legal office is going to take the blame for this?

meci on January 25, 2013 at 1:40 PM

It’s a sure bet that Valerie Jarrett herself has already created a list of names to select one from to join the undercarriage of the bus they’ll end up being thrown under! I say Jarrett because Obama doesn’t so much as pass gas these days without asking her if it is OK first!

pilamaye on January 25, 2013 at 1:56 PM

What is this ‘Constitution’ that you speak of and why do the courts feel they have the right to address Emperor Obama about it? Oh, and what difference does it make anyway?

ghostwalker1 on January 25, 2013 at 1:57 PM

Yes moron, Obama overreached his Constitutional authority and FORCED the Judicial System to CLARIFY what had previously been a gray area of law.

SWalker on January 25, 2013 at 1:36 PM

That’s an idiotic statement.

Obama forced the judicial system to clarify what had previously been a grey area which presidents exploited to do something that was unconstitutional.

That’s your criticism?

segasagez on January 25, 2013 at 1:57 PM

I highly doubt the media will even cover this….

ToddPA on January 25, 2013 at 12:35 PM

Probably not. But they’ll probably cover whatever little dig he gets in at SCOTUS at the next SOTU.

There Goes The Neighborhood on January 25, 2013 at 1:58 PM

Yes moron, Obama overreached his Constitutional authority and FORCED the Judicial System to CLARIFY what had previously been a gray area of law.

SWalker on January 25, 2013 at 1:36 PM

Sometimes it’s like trying to teach Latin to bucket of soup, ain’t it?

29Victor on January 25, 2013 at 1:58 PM

Great job by Mark Levin and the Landark Foundation for helping to spear this legal fight. Score one for the Constitution!!

cdog0613 on January 25, 2013 at 11:40 AM

Good job indeed. That is one man who puts him money where his mouth is.

cptacek on January 25, 2013 at 1:58 PM

Ed Morrissey: Does that mean any action that was taken by a “recess apointment” that was not created during the recess period is now voidable; if so, could that also affect actions taken by Bush appointtees who did not adhere to this constitutional ruling…

This could open up a lot of litigation about unlawful actions by federal agencies…

RedSoxNation on January 25, 2013 at 1:21 PM

Good question. Anyone have any idea?

cptacek on January 25, 2013 at 2:00 PM

The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words
speak clearly, it is not up to us to depart from their meaning in
favor of our own concept of efficiency, convenience, or
facilitation of the functions of government. In light of the
extensive evidence that the original public meaning of “happen”
was “arise,” we hold that the President may only make recess
appointments to fill vacancies that arise during the recess.

This is an epic slapdown of the president.

Ted Torgerson on January 25, 2013 at 2:03 PM

segasagez on January 25, 2013 at 1:32 PM

His actions were unconstitutional. Suck on it. If it were Bush you’d be calling for impeachment.

rrpjr on January 25, 2013 at 2:04 PM

SWalker on January 25, 2013 at 1:36 PM

Sometimes it’s like trying to teach Latin to bucket of soup, ain’t it?

29Victor on January 25, 2013 at 1:58 PM

Nope, teaching a bar of soap Latin would be easier.

SWalker on January 25, 2013 at 2:05 PM

Second – As soon as Articles of Impeachment are filed, the 47% will riot mindlessly to protect their “Lord and Savior’. (Old news articles indicate that is why obama was never vetted properly, fear of riots.)

xmanvietnam on January 25, 2013 at 1:48 PM

He was also not vetted at all because the MSM is beholden to the Socialists and refused to do anything. AFAIK, only Hannity, Bret Baier and Breitbart.com have done any valid introspection of Obama, period. And look where that got us.

The rest of the media in general follows the MSNBC mold of painting an alternative reality; basically, they lie through their teeth to the general public. This includes the people who still watch the evening news (albeit, a much diminished audience compared to the past, but still an audience nonetheless) as well as alleged “comedy” shows like The Daily Show, which fool the viewer into thinking it is an actual newscast.

The MSM alone would be most capable of inciting riots by instigating the 47% who watch them and believe every word that they utter.

And THEN you have the under-30 crowd, which is basically a permanent write-off to Socialist dogma. They would vote for Satan if he ran for POTUS, because Satan would register as a Dem. And to that crowd, Dems are cool. Conservatives are uncool, plus to them, they want to take away their free birth control and nationalized student loans. They are being trained to be sycophants to whatever the Socialists want without impunity.

Myron Falwell on January 25, 2013 at 2:05 PM

Obama forced the judicial system to clarify what had previously been a grey area which presidents exploited to do something that was unconstitutional.

That’s your criticism?

segasagez on January 25, 2013 at 1:57 PM

Repeat: sum – es -est -sumus – estis – sunt awww, forget it. I give up.

29Victor on January 25, 2013 at 2:07 PM

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.

Judge Justice Roberts will ride to save Obama’s ass again!

HondaV65 on January 25, 2013 at 2:07 PM

Boom.

Finally.

MTF on January 25, 2013 at 2:07 PM

Ed Morrissey: Does that mean any action that was taken by a “recess apointment” that was not created during the recess period is now voidable; if so, could that also affect actions taken by Bush appointtees who did not adhere to this constitutional ruling…

This could open up a lot of litigation about unlawful actions by federal agencies…

RedSoxNation on January 25, 2013 at 1:21 PM

The opinion does not say the actions are voidable. They say the actions are void.

As with the first issue, we hold that the petitioner’s
understanding of the constitutional provision is correct, and the
Board’s is wrong. The Board had no quorum, and its order is
void
.

Ted Torgerson on January 25, 2013 at 2:08 PM

Sounds like a good time for GOP to propose defunding the entire NLRB. Eliminate it from the budget. What a waste of time and money.

monalisa on January 25, 2013 at 2:08 PM

Leftist C-BS “Legal Analyst” Andrew Cohen postulated at the top of the hour that an alternative to appealing to SCOTUS would be to ask the entire DC Circuit Panel to rule on this, not just the 3 Activist Judges who ruled today.

Del Dolemonte on January 25, 2013 at 2:09 PM

Right now, 2 pm eastern, Rush’s first hour is playing on KOA in Denver. I am listening on the heart radio app. I wanted to hear him discuss this.

karenhasfreedom on January 25, 2013 at 2:10 PM

This is an epic slapdown of the president.

Ted Torgerson on January 25, 2013 at 2:03 PM

The first three sentences should be emailed to every Congressman & justice.

They should be framed and hung up above the picture of the president in their offices.

They should be forced to wear phylacteries containing a scroll inscribed with those beautiful words whenever Congress or the Court is in session.

29Victor on January 25, 2013 at 2:11 PM

Obama forced the judicial system to clarify what had previously been a grey area which presidents exploited to do something that was unconstitutional.

That’s your criticism?

segasagez on January 25, 2013 at 1:57 PM

Repeat: sum – es -est -sumus – estis – sunt awww, forget it. I give up.

29Victor on January 25, 2013 at 2:07 PM

Indeed. Why bust a vein trying to teach the unteachable.

Bitter Clinger on January 25, 2013 at 2:12 PM

The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.

These are the sentences to which I was referring to save folks the upscroll.

29Victor on January 25, 2013 at 2:13 PM

Obama forced the judicial system to clarify what had previously been a grey area which presidents exploited to do something that was unconstitutional.

That’s your criticism?

segasagez on January 25, 2013 at 1:57 PM

Wrong again imbecile. No president before Obama ever declared Congress to be in Recess. Other President made Recess appointments at times when Congress declared itself to be in Recess. Obama declaring Congress to be in Recess FORCED the Judiciary to CLARIFY WHEN Congress is in Recess. Not whether the POTUS has the Constitutional Authority to make Recess Appointments.

The previously existing gray area was regarding exactly when and under what conditions the POTUS could make a Recess Appointment. What is and never was at question was whether the POTUS could declare Congress to be in Recess or not. The POTUS has never had that Constitutional Authority.

SWalker on January 25, 2013 at 2:13 PM

Indeed. Why bust a vein trying to teach the unteachable.

Bitter Clinger on January 25, 2013 at 2:12 PM

A rebuke goes deeper into one who has understanding
Than a hundred blows into a fool.

Proverbs 17:10

But sometimes it is kinda fun to smack around a fool. :D

29Victor on January 25, 2013 at 2:21 PM

But sometimes it is kinda fun to smack around a fool. :D

29Victor on January 25, 2013 at 2:21 PM

Yes, it does have a cathartic effect.

SWalker on January 25, 2013 at 2:31 PM

It is this difference between the word choice “recess”
and “the Recess” that first draws our attention. When
interpreting a constitutional provision, we must look to the
natural meaning of the text as it would have been understood at
the time of the ratification of the Constitution. District of
Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). Then, as
now, the word “the” was and is a definite article. See 2 Samuel
Johnson, A Dictionary of the English Language 2041 (1755)
(defining “the” as an “article noting a particular thing”
(emphasis added)). Unlike “a” or “an,” that definite article
suggests specificity. As a matter of cold, unadorned logic, it
makes no sense to adopt the Board’s proposition that when the
Framers said “the Recess,” what they really meant was “a
recess.” This is not an insignificant distinction. In the end it
makes all the difference.

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

cptacek on January 25, 2013 at 2:32 PM

Book’im Dano…..

dentarthurdent on January 25, 2013 at 2:33 PM

I can see why liberals hate the Heller decision. This brief uses Heller reasoning all the way through.

cptacek on January 25, 2013 at 2:41 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 a President who tried to logic chop the word “is”

Jabberwock on January 25, 2013 at 2:42 PM

If past is prologue, I wouldn’t count on the Roberts Court for anything approaching the rational Constitutionalists view.

The Chief Justice has shown much less understanding of our Constitution then the very well-reasoned and unanimous decision by the DC Federal Court.

Marcus Traianus on January 25, 2013 at 2:47 PM

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.

Indeed.

cptacek on January 25, 2013 at 2:49 PM

We will not do violence to the
Constitution by ignoring the Framers’ choice of words.

Something to add to your cross-stich pattern, Victor29 :)

cptacek on January 25, 2013 at 2:54 PM

So, if a vacancy arises while the Senate is in session but goes unfilled, the President cannot fill the vacancy once they go on Recess.

tommylotto on January 25, 2013 at 12:47 PM

That is key…

right2bright on January 25, 2013 at 2:55 PM

POPCORN!

Tune to MSNBC and

GET THE POPCORN!

Snowblind on January 25, 2013 at 3:09 PM

How is this possible??

Isn’t President Obama a constittuional scholar?

patch on January 25, 2013 at 1:23 PM

I haven’t seen a diploma…Have you?

workingclass artist on January 25, 2013 at 3:14 PM

Wow, a court actually enforced the Constitution?

Little Barry’s not going to be happy through the weekend. Aw, darn!

Kingfisher on January 25, 2013 at 3:21 PM

New Steyn…

The Obama Simulacrum

M2RB: .38 Special

Resist We Much on January 25, 2013 at 3:21 PM

I’ll save MSNBC the time:

The court is RRRRRAAAAAAACIIIIISSSSST!

(/dumba$$ libs)

Kingfisher on January 25, 2013 at 3:23 PM

So now the Marxists will make sure most/all vacancies happen to occur during ‘the recess’?

Sorry, but I expect them to continue to do anything/everything to circumvent the Constitution and law.

What was the outcome of O being held in contempt of court re his offshore drilling ban?

He and his administration have flagrantly violated the rule of law too many times to count, yet almost daily they continue to march ‘forward’ and push break the envelope.

Opinionator on January 25, 2013 at 3:27 PM

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.

Indeed.

cptacek on January 25, 2013 at 2:49 PM

Indeed, ESPECIALLY IN THIS CASE BECAUSE OF THE FACTS. Obama nominated the 3 people to the NLRB on 14 December 2011 and then “non-recess-recess” appointed them on 4 January 2012. THREE WEEKS! He can’t even complain that Republicans had obstructed anything.

The nominees hadn’t even completed their document submissions nor had Harry Reid scheduled hearings, debate or a confirmation vote.

Resist We Much on January 25, 2013 at 3:32 PM

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