White House appeals to Supreme Court on recess-appointment ruling

posted at 10:01 am on March 13, 2013 by Ed Morrissey

No surprise, since leaving the DC Court of Appeals ruling in place would mean setting the precedent that a President can’t use the recess-appointment power at all except during, y’know, recesses.  The only real eyebrow archer in this move is that the White House didn’t ask for an en banc review first:

The Obama administration wants the Supreme Court to overturn a lower court ruling that President Obama’s recess appointments were unconstitutional.

U.S. Court of Appeals for the DC Circuit ruled in January that his appointments of three members to the National Labor Relations Board were not valid because the Senate was not technically in recess.

The NLRB said Tuesday that it has decided — in consultation with the Department of Justice — not to ask for an en banc review of the case by the same court,  but is instead filing a petition for certiorari with the United States Supreme Court for review of the decision.

Why not go for the en banc review, which the NLRB and the Obama administration had as an option? After all, the agency all but declared after their loss in January that they didn’t feel bound by the decision.  Any delay of final adjudication allows them to continue that charade and operate as if they had a legal quorum in other cases, daring potential plaintiffs to file suit to invalidate rulings that disadvantage them.  If they wait long enough, the reappointment of the three board members might clear the Senate and make the whole issue moot — at least in regard to the NLRB.

Perhaps the unanimous ruling — and stern scolding delivered in it — convinced White House lawyers that the rest of the DC circuit might be loathe to reverse the decision, or just that their odds didn’t look good.  Even if the full circuit moderated the decision to allow for more circumstances in which a President can use recess-appointment power, they’d be unlikely to moderate it to the extent that it would help the NLRB in keeping its quorum.  An en banc loss, especially one that upheld the initial ruling in full, might also pressure the Supreme Court to sign off on most of their findings.

I’d expect the Supreme Court to take this case immediately and perhaps accelerate the review.  Otherwise, these cases will clog court calendars for months while plaintiffs seek injunctions for rulings that never should have been made.  While this is a significant constitutional question, it doesn’t involve a lot of technical issues that require long consideration.


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hey Supremes, pass on it……..let the lower Court ruling stand.

It’s obvious to the most casual constitutional observer.

JayTee on March 13, 2013 at 10:07 AM

What if Bush had done this?

Del Dolemonte on March 13, 2013 at 10:08 AM

Obama violates the law, walks on the Constitution and then wants the supreme court to help him . . . he’s is the epitome of hypocrisy.

rplat on March 13, 2013 at 10:09 AM

They’re going to decline this, right? They’d better.

22044 on March 13, 2013 at 10:10 AM

They’re going to decline this, right? They’d better.

22044 on March 13, 2013 at 10:10 AM

After the “RobertO’Care decision”, who knows?

Rovin on March 13, 2013 at 10:17 AM

Roberts will assess how a ruling either way will affect his standing among the bien pensants on the DC cocktail party circuit and decide accordingly.

rrpjr on March 13, 2013 at 10:21 AM

What does intrade say?
/

D-fusit on March 13, 2013 at 10:21 AM

At this point, what difference does it make.

tom daschle concerned on March 13, 2013 at 10:24 AM

Obama violates the law, walks on the Constitution and then wants the supreme court to help him . . . he’s is the epitome of hypocrisy.

rplat on March 13, 2013 at 10:09 AM

Hey, it worked with Obamacare – of course they’re going to expect a ruling in their favor.

Ukiah on March 13, 2013 at 10:25 AM

What if Bush had done this?

Del Dolemonte on March 13, 2013 at 10:08 AM

…it’s called…”Impeachment Proceedings”!

KOOLAID2 on March 13, 2013 at 10:26 AM

With this appeal, I’d like to see the Supreme Court address the quo warranto issue. By what authority does Obama make any nomination? He is usurping the office and the powers of that office.

The Supreme Court in Minor v. Happersett:

The Fourteenth Amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment.

The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

The Supreme Court did not construe the 14th Amendment in that case because Virginia Minor was a natural born citizen.

There was never any doubt that natural born citizens were citizens.

The Court acknowledged that there were doubts about whether or not children born within the jurisdiction without reference to the citizenship of their parents should be considered citizens. But the Court did not have to resolve those doubts in the case of Minor. (And addressed those doubts in the case of Wong Kim Ark, but that Court ruled that Wong was a citizen and never called him a “natural born citizen”).

The Minor Court said that natural born citizens do not need the 14th Amendment in order to be considered citizens.

The contrapositive is that anyone who needs the 14th Amendment in order to be considered a citizen is therefore not a natural born citizen.

And Obama’s own campaign web site in 2008 said:

“Obama became a citizen at birth under the first section of the 14th Amendment”.

That was later scrubbed, presumably when the Obama campaign realized that the Minor court said that natural born citizens don’t need the 14th Amenmdent, and if Obama admitted that his citizenship claims were based on the 14th Amendment, then that is an admission that he’s not a natural born citizen… just like the later admission that he was born a British subject because his father was a British subject.

ITguy on March 13, 2013 at 10:29 AM

After the “RobertO’Care decision”, who knows?

Rovin on March 13, 2013 at 10:17 AM

Good point, but my point is hoping they’ll decline to even hear this case, unlike their acceptance of the Obamacare lawsuit.

22044 on March 13, 2013 at 10:36 AM

U.S. Court of Appeals for the DC Circuit ruled in January that his appointments of three members to the National Labor Relations Board were not valid because the Senate was not technically in recess.

I love the Politico’s wording here. The Senate was not technically in recess. Hey you rat-eared loving partisans….. the Senate was NOT in recess. All you are trying to do is give the administration some wiggle room to argue that the appointments of the union loving commies to the NLRB was valid.

Happy Nomad on March 13, 2013 at 10:40 AM

“what does Intrade say?”

No word from Intrade, but Captain Renault, currently in possession of Intrade’s offices, said “I am shocked, shocked! to find that there is gambling going on here! This establishment will be closed til further notice!”

poor Intrade, they forgot to give the “right people” a big enough cut of the action.

Tom Servo on March 13, 2013 at 10:44 AM

Perhaps the unanimous ruling — and stern scolding delivered in it — convinced White House lawyers that the rest of the DC circuit might be loathe to reverse the decision, or just that their odds didn’t look good

Because the White House is willfully ignoring such a strong ruling. Courts don’t like it when anyone shows disrespect. Even if a majority of the full Court would overturn it, they aren’t going to reward disrespect. And I think the Supreme Court isn’t going to be happy with the White House here. Upheld by 6-3. Maybe even 7-2.

rbj on March 13, 2013 at 10:44 AM

The Obama lawyers skipped the en banc review and pushed it right into the Supremes because they’re counting on John Roberts to say the (non)recess appointments were a valid exercise of executive power (it’s just like a tax! . . . or rape, or something).

They probably already have Krugman on retainer to write up a brilliant NY Times editorial strongly hinting that Roberts will not be spoken well of at NY/DC-circuit cocktail parties in the future unless he continues rubber-stamping Barry’s wish list.

AZCoyote on March 13, 2013 at 10:44 AM

Roberts will save his rear.

“Those NLRB appointments had to be made in order to, uh, TAX those businesses”

But yeah, the lower court ruling should be allowed to stand as is, it’s the correct decision. And it’s the biggest slap down against executive power overreach in a century.

Which is why it won’t be allowed to stand.

wildcat72 on March 13, 2013 at 10:47 AM

After the “RobertO’Care decision”, who knows?

Rovin on March 13, 2013 at 10:17 AM

Good point, but my point is hoping they’ll decline to even hear this case, unlike their acceptance of the Obamacare lawsuit.

22044 on March 13, 2013 at 10:36 AM

“John, do you know how hard it is to get your children into a decent private school in the DC area? I have friends that can help…”

slickwillie2001 on March 13, 2013 at 10:47 AM

What if Bush had done this?

Del Dolemonte on March 13, 2013 at 10:08 AM

What do you mean “if Bush had done this?”???? Of course Bush did it; he did it every day at every level of government, without warrants and while violating every civil right one could ever think of and while pouring oil and nuclear waste into minorities’ drinking water!!!!!!11!1!!11!!!!!!!1

*whew*

Sorry, had a little libfreeordie episode there.

Nutstuyu on March 13, 2013 at 10:54 AM

ITguy on March 13, 2013 at 10:29 AM

Raaaaaacccciiiiiiiiissstttt!!!!!!!!!

This libfreeordie thing is kind of fun.

Nutstuyu on March 13, 2013 at 10:58 AM

The contrapositive is that anyone who needs the 14th Amendment in order to be considered a citizen is therefore not a natural born citizen.

You assertion of the contrapositive is wrong since in Minor v. Happersett, as you yourself excerpted,

“As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts.

The Court is silent on the subject of whether “natural born citizen” includes them. The contrapositive of yes is no and the contrapositive of no is yes. The Contrapositive of nothing, i.e., not necessary to solve these doubts”, is still nothing.

Dusty on March 13, 2013 at 10:58 AM

“John, do you know how hard it is to get your children into a decent private school in the DC area? I have friends that can help…”

slickwillie2001 on March 13, 2013 at 10:47 AM

“John, did you know it was illegal to adopt those Irish children?”

cptacek on March 13, 2013 at 11:29 AM

I love this case: Will the Supremes agree with me that the President is a lawless SCOAMF? Bring me beer and popcorn.

MTF on March 13, 2013 at 11:36 AM

This libfreeordie thing is kind of fun.

Nutstuyu on March 13, 2013 at 10:58 AM

That was an epic thread yesterday!

22044 on March 13, 2013 at 11:38 AM

That was an epic thread yesterday!

[22044 on March 13, 2013 at 11:38 AM]

I must have either missed that thread or the epic part. Which one was it?

Dusty on March 13, 2013 at 11:48 AM

If they wait long enough, the reappointment of the three board members might clear the Senate and make the whole issue moot — at least in regard to the NLRB.

Ed, as I read the ruling the decision in the specific NLRB case was that all NLRB board actions are vacated.

To my knowledge, no one has obtained a stay of that decision. There is no point to become moot.

BobMbx on March 13, 2013 at 11:54 AM

Obama violates the law, walks on the Constitution and then wants the supreme court to help him . . . he’s is the epitome of hypocrisy.

rplat on March 13, 2013 at 10:09 AM

After SCOTUS upholds, whats the over/under he appeals to the UN?

Oh, just so I can say “I said it first”:

Obama soon to learn that determining when the Senate is in recess is, in fact, above his paygrade.

BobMbx on March 13, 2013 at 11:59 AM

I must have either missed that thread or the epic part. Which one was it?

Dusty on March 13, 2013 at 11:48 AM

The Jim Moran thread yesterday.

22044 on March 13, 2013 at 12:01 PM

The SC had better put a stop to the Obysmal lawlessness…pronto, before the Senate rubber stamps Perez as Sec. of Labor.

Perez is as much a scofflaw as Obysmal and more than probably a perjurer.

onlineanalyst on March 13, 2013 at 12:05 PM

hey Supremes, pass on it……..let the lower Court ruling stand.

It’s obvious to the most casual constitutional observer.

JayTee on March 13, 2013 at 10:07 AM

Exactly what they will do…probable with a little dig about how obvious of a ruling it is.

right2bright on March 13, 2013 at 12:10 PM

The contrapositive is that anyone who needs the 14th Amendment in order to be considered a citizen is therefore not a natural born citizen.

ITguy on March 13, 2013 at 10:29 AM

You must be the last of the Birthers left on Hot Air that still spouts birther nonsense arguments. I would like to admire your perserverance… but I don’t.

Your argument appears to be: People who must rely upon the 14th amendment for citizenship are not natural born citizens, and thus ineligible to be President of the United States of America.

To refresh everyone’s memory, the 14th amendment was a reconstruction era amendment to the U.S. Constitution which granted (acknowledged) citizenship rights upon all persons born in the United States. The 14th Amendment was necessary to nullify supreme court decision in Dred Scott.

To again refresh memories, in Dred Scott the SCUS held that that “persons of african descent” were not citizens and could not become citizens, nor enjoy the benefits of citizenship. Dred Scott v. Sandford, 60 U.S. 393 (1857).

So your argument is: 1) persons of african descent must rely upon the 14th Amendment for their grant of citizenship instead of the original draft of the constitution (sans any amendments); 2) the 14th amendment only grants “citizenship” and does not grant “natural born citizenship”; therefore (3) anyone of african descent (such as President Obama) is ineligible for the post of President because African Americans can never be “natural born citizens”.

Mr. ITGuy, you, sir, win for having the worst birther argument of all time. Your argument actually deserves the “racist!” monicker as well, which is a distinction of sorts from most birther arguments.

New_Jersey_Buckeye on March 13, 2013 at 12:19 PM

Exactly what they will do…probable with a little dig about how obvious of a ruling it is.

right2bright on March 13, 2013 at 12:10 PM

That’s exactly why they WON’T do that, though I agree that is the correct decision.

The Appeals Court did a LOT more than just vacate the NLRB rulings AND disqualify the appointees, it ruled that the President has no power to recess appoint ANYONE except between Congresses, and then only if the vacancy opens up between Congresses.

IE: pro forma Senate session NOT NEEDED to block recess appointments.

It is the CLEAR intent of the Constitution that the President not be able to appoint certain people (such as judges) without the Senate. The recess appointment power was intended to be limited to allowing offices to be temporarily filled while between Congressional sessions, which typically last a whole Congress.

IE: we’re at war, new Congress isn’t seated until January, old secretary of defense dies in December, President can appoint a temporary replacement until Congress comes in and can confirm one.

As I said earlier in the thread, this ruling is VERY significant because it’s the first walkback of assumed Executive power in 100 years.

wildcat72 on March 13, 2013 at 12:26 PM

The Jim Moran thread yesterday.

22044 on March 13, 2013 at 12:01 PM

Thanks.

Dusty on March 13, 2013 at 12:30 PM

What if Bush had done this?

Del Dolemonte on March 13, 2013 at 10:08 AM

What do you mean “if Bush had done this?”???? Of course Bush did it; he did it every day at every level of government, without warrants and while violating every civil right one could ever think of and while pouring oil and nuclear waste into minorities’ drinking water!!!!!!11!1!!11!!!!!!!1

*whew*

Sorry, had a little libfreeordie episode there.

Nutstuyu on March 13, 2013 at 10:54 AM

If libfree had actually been intellectually curious about the origin of his “pen name”, he would have never used it in the first place.

General John Stark.

Del Dolemonte on March 13, 2013 at 12:40 PM

So your argument is: 1) persons of african descent must rely upon the 14th Amendment for their grant of citizenship instead of the original draft of the constitution (sans any amendments); 2) the 14th amendment only grants “citizenship” and does not grant “natural born citizenship”; therefore (3) anyone of african descent (such as President Obama) is ineligible for the post of President because African Americans can never be “natural born citizens”.

Mr. ITGuy, you, sir, win for having the worst birther argument of all time. Your argument actually deserves the “racist!” monicker as well, which is a distinction of sorts from most birther arguments.

New_Jersey_Buckeye on March 13, 2013 at 12:19 PM

Nice strawman you’ve got there.

Persons of african descent who were born on U.S. soil to two U.S. citizen parents are natural born citizens of the U.S. and don’t need the 14th Amendment to make them U.S. citizens.

Your assumptions are wrong, beginning with step 1.

Nice try calling me a racist, though. Nutstuyu (on March 13, 2013 at 10:58 AM) was joking, but you were being serious. Sad.

ITguy on March 13, 2013 at 12:54 PM

So we can’t afford to keep the White House open to visitors – but we can afford a whole slew of over-priced lawyers to challenge a lower court ruling?

Riiiiiight.

Hill60 on March 13, 2013 at 1:59 PM

This is actually a pretty big deal. If the president gets to decide when the Congress is in recess, then the Congress is powerless. It’s not just a question of making appointments to federal offices — it’s whether the Congress can act if the president says it’s not in session.

J Baustian on March 14, 2013 at 12:46 AM