Obama wants SCOTUS to uphold controversial recess appointments

posted at 9:21 pm on April 25, 2013 by Mary Katharine Ham

Remember, in 2012, when President Obama pretty much declared the Senate in recess, even though they weren’t, so that he could make some recess appointments? The action threw the appointment of, most notably, controversial Consumer Financial Protection Bureau head Richard Cordray into doubt. In January of 2013, the D.C. Circuit court unanimously decided a trio of National Labor Relations Board appointments Obama made at that time were unconstitutional.

As Ed noted in January:

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…

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.

The Obama administration has now officially asked the Supreme Court to back them on these appointments:

A major Supreme Court battle over presidential powers loomed closer Thursday as the Obama administration asked the justices to uphold appointments made without the Senate’s consent.

The long-expected Justice Department request is almost certain to make its way on to the court’s calendar later this year or in 2014, since lower courts have issued split decisions on the issue.

The move has been expected since shortly after the lower court’s ruling. Reason‘s Damon Root offers the meat of the administration’s brief:

In a brief submitted today, the Obama administration has asked the U.S. Supreme Court to overturn that decision and place its stamp of approval on Obama’s use of executive power. “The court of appeals’ decision would dramatically curtail the scope of the President’s authority under the Recess Appointments Clause,” the administration’s brief states. “It would deem invalid hundreds of recess appointments made by Presidents since early in the Nation’s history. It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.”

The Supreme Court is likely to take the case. In 2004, the U.S. Court of Appeals for the 11th Circuit upheld President George W. Bush’s similar use of the recess appointment power, meaning the federal circuits are split on this major constitutional issue. In addition, as the Obama administration observes, a year’s worth of NLRB actions have been thrown into doubt by the D.C. Circuit. It won’t be easy for the justices to avoid entering the thicket on this one.


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I would like to be Duchess of Guatemala.

katy the mean old lady on April 25, 2013 at 9:22 PM

I got a Bishop!? Well, byte me!

katy the mean old lady on April 25, 2013 at 9:23 PM

The Founders would be cleaning their muskets at the hint of their new nation being ruled by the whims of nine vain, robed tyrants.

viking01 on April 25, 2013 at 9:26 PM

So then would the left complain if President Cruz appointed a 55 year old Scalia to replace Bryer over a weekend “recess”, since proforma sessions are now apparently bunk?

crrr6 on April 25, 2013 at 9:26 PM

depends- is the chief justice still on his knees with something unseemly metaphorically in his pie hole?

mittens on April 25, 2013 at 9:27 PM

Should be interesting to see how Benedict Roberts goes on this

AZfederalist on April 25, 2013 at 9:28 PM

If you do…I swear…I’ll put Ashley Judd with you.

WryTrvllr on April 25, 2013 at 9:28 PM

But didn’t you hear? 0bama is allowed to do whatever the hell he wants!

NerwenAldarion on April 25, 2013 at 9:29 PM

In addition, as the Obama administration observes, a year’s worth of NLRB actions have been thrown into doubt by the D.C. Circuit. It won’t be easy for the justices to avoid entering the thicket on this one.

So make illegal appointments that would never get through the confirmation process. Ram through anti-business ruling after anti-business ruling. Then cop the plea that you can’t throw the bastards out because of how much work would be undone. Well played you rat-eared bastard. It might just work.

Happy Nomad on April 25, 2013 at 9:29 PM

Why do we the people even vote anymore..

Electrongod on April 25, 2013 at 9:30 PM

So once again we’re left with the nine wise men determining the fate of the country. Lovely.

Shump on April 25, 2013 at 9:30 PM

Who cares what he wants? People in hell want ice water.

Tough teet-tee.

platypus on April 25, 2013 at 9:30 PM

Evening all!

katy the mean old lady on April 25, 2013 at 9:23 PM

That so made me chuckle. Thanks I needed to laugh.

CoffeeLover on April 25, 2013 at 9:31 PM

There were two parts to the original decision 1) the President cannot decide that the Senate is in recess; and 2) the President can only make a recess appointment if the vacancy arises during a recess. The judge was probably right on both points, but that second point is more controversial and may get overturned by SCOTUS. No way does SCOTUS allow POTUS to unilaterally decide when the Senate is in recess. Obama loses this case, but the ruling may get limited to the first point, not the broader second point as well.

tommylotto on April 25, 2013 at 9:31 PM

The Founders would be cleaning their muskets at the hint of their new nation being ruled by the whims of nine vain, robed tyrants.

viking01 on April 25, 2013 at 9:26 PM

Well, they had just fought a war to get rid of one vain robed tyrant. They certainly wouldn’t have abided by a ninefold increase in tyrants.

Happy Nomad on April 25, 2013 at 9:32 PM

Who cares what he wants? People in hell want ice water.

platypus on April 25, 2013 at 9:30 PM

A fact the rat-eared coward and his fat-bottomed spouse will discover soon enough.

Happy Nomad on April 25, 2013 at 9:35 PM

And why not, Bark saw how Roberts bent over for BarkyCare, what’s a few recess appointments in comparison.

Bishop on April 25, 2013 at 9:36 PM

The Senate could NOT have possibly been in recess pursuant to Article I, Section 5, Clause 4 since the House never consented. Furthermore, the President does not have the Constitutional authority to draft or define the rules of either chamber. The Senate, by its own motion, was in pro forma session. Now, President Obama and his friends might want to claim that pro forma sessions aren’t really sessions, but then they will have to explain how the Senate managed to pass an extension of the payroll tax holiday during one of those sessions.

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 individuals to the NLRB on 14 December 2011 and then made the “non-recess-recess” appointments on 4 January 2012…BEFORE THE NOMINEES HAD EVEN COMPLETED THE REQUISITE DOCUMENT SUBMISSIONS AND HARRY REID EVEN HAD A CHANCE TO SCHEDULE HEARINGS OR A CONFIRMATION VOTE.

That’s a mere THREE WEEKS!!!

Resist We Much on April 25, 2013 at 9:36 PM

So once again we’re left with the nine wise men determining the fate of the country. Lovely.

Shump on April 25, 2013 at 9:30 PM

No, eight wise men and The Wise Latina™.

aunursa on April 25, 2013 at 9:38 PM

F*ck you, little tyrant.

Midas on April 25, 2013 at 9:39 PM

Meanwhile, cordray cashes his paycheck.

wolly4321 on April 25, 2013 at 9:39 PM

No, eight wise men and The Wise Latina™.

aunursa on April 25, 2013 at 9:38 PM

I would hardly call Ruth a wise man..
:)

Electrongod on April 25, 2013 at 9:39 PM

The judge was probably right on both points

tommylotto on April 25, 2013 at 9:31 PM

It was a UNANIMOUS decision of a THREE-JUDGE panel of the DC App Ct.

Resist We Much on April 25, 2013 at 9:39 PM

The Founders would be cleaning their muskets at the hint of their new nation being ruled by the whims of nine vain, robed tyrants.

viking01 on April 25, 2013 at 9:26 PM

They’d be cleaning them, because they’d have already been *using* them by now.

Midas on April 25, 2013 at 9:40 PM

In addition, as the Obama administration observes, a year’s worth of NLRB actions have been thrown into doubt by the D.C. Circuit.

 
Seems easy enough to me:
 

President Obama, as your father surely taught you, you would’ve done well to have considered those consequences before you knowingly and willingly overreached and acted against the Constitution as you did.
 
Next case?

rogerb on April 25, 2013 at 9:40 PM

I really really really really despise this man.

gophergirl on April 25, 2013 at 9:44 PM

F*ck you, little tyrant.

Midas on April 25, 2013 at 9:39 PM

Well said

gophergirl on April 25, 2013 at 9:45 PM

I would hardly call Ruth a wise man..
:)

Electrongod on April 25, 2013 at 9:39 PM

No, Ruth isn’t wise. The rest of the assessment holds up.

Happy Nomad on April 25, 2013 at 9:48 PM

We lose Scalia or Thomas,, we’re toast and I’m going Jerimiah Johnson.

wolly4321 on April 25, 2013 at 9:54 PM

How come the judges didn’t take into account that 0 was a constitutional law professor, that has to count for something.

tommer74 on April 25, 2013 at 9:54 PM

We lose Scalia or Thomas,, we’re toast and I’m going Jerimiah Johnson.

wolly4321 on April 25, 2013 at 9:54 PM

You’re going to marry a Flathead woman, adopt a mute boy, and battle against Indian warriors?

Bishop on April 25, 2013 at 9:59 PM

How come the judges didn’t take into account that 0 was a constitutional law professor, that has to count for something.

tommer74 on April 25, 2013 at 9:54 PM

Because they know as much as the rest of us that this make-do job is as much of a fiction as any other part of the rat-eared coward’s resume.

Happy Nomad on April 25, 2013 at 10:00 PM

Remember, in 2012, when President Obama pretty much declared the Senate in recess, even though they weren’t, so that he could make some recess appointments?

I don’t understand the problem. Isn’t it a royal prerogative to disband parliament when they don’t submit to the King’s will?

malclave on April 25, 2013 at 10:00 PM

You’re going to marry a Flathead woman, adopt a mute boy, and battle against Indian warriors?

Bishop on April 25, 2013 at 9:59 PM

speaking for myself, yes, yes and I’m joining the Indians. Maybe the outcome will be different this time.

arnold ziffel on April 25, 2013 at 10:03 PM

I don’t understand the problem. Isn’t it a royal prerogative to disband parliament when they don’t submit to the King’s will?

malclave on April 25, 2013 at 10:00 PM

Yeah, it worked well for Charles I of England.

Happy Nomad on April 25, 2013 at 10:23 PM

But…but…but doesn’t King Barry get to do whatever he wants, whenever he wants?

I mean, it’s not like there’s a law or….er….oh, there is.

Never mind.

GarandFan on April 25, 2013 at 10:26 PM

depends- is the chief justice still on his knees with something unseemly metaphorically in his pie hole?

mittens on April 25, 2013 at 9:27 PM

With a paper sticking out his rear end bearing a strange inscription of “I said it’s tax, idiot!”

riddick on April 25, 2013 at 10:27 PM

There were two parts to the original decision … 2) the President can only make a recess appointment if the vacancy arises during a recess. … that second point is more controversial and may get overturned by SCOTUS.

tommylotto on April 25, 2013 at 9:31 PM

So you’re saying that, if the President arranges with the current cabinet member to have him resign during a recess, the President can appoint whoever he wants before the Senate is back in session?

This would become known as the “Wham, Bam, thank you Ma’am” rule of appointment.

Socratease on April 25, 2013 at 10:29 PM

Why do we the people even vote anymore..
Electrongod on April 25, 2013 at 9:30 PM

Because we like the feeling that we have a tiny bit of control over the destination of wthe land where we reside.

And they allow us the ILLUSION of actually having a say in the choosing our rulers.

They haven’t disarmed us completely, yet, so they let us have our little fantasy show of self government.

LegendHasIt on April 25, 2013 at 10:35 PM

tommylotto on April 25, 2013 at 9:31 PM

I’m not so sure. Point 2 seems to me to conform exactly to a plain reading of the Constitution. And, we know that the writers were much
more concerned with excessive executive power than excessive legislative power.

tngmv on April 25, 2013 at 10:42 PM

But, but, Obama is king.

At least in his own mind.

losarkos on April 25, 2013 at 10:43 PM

If the SCOTUS allows these “recess?” appointments to stand obama can just say “Hey, they weren’t all present so they are in recess and I’ve decided to appoint Beyonce as UN Ambassador”…

sandee on April 25, 2013 at 10:49 PM

Not flathead. Apache. Plenty of them around Showlow. White mountains. Skip the mute boy, unless he’s good at hunting and chopping wood.

Some Apache women are really hot. So yea, I’m not kidding. Long black hair. I’ll hunt and fish. And cash her check from the Bereau of Indian Affairs. She’ll cook.

Dunno. Sounds like a plan. Better than tire fire signals in some city.

wolly4321 on April 25, 2013 at 10:49 PM

There were two parts to the original decision … 2) the President can only make a recess appointment if the vacancy arises during a recess. … that second point is more controversial and may get overturned by SCOTUS.

tommylotto on April 25, 2013 at 9:31 PM

So you’re saying that, if the President arranges with the current cabinet member to have him resign during a recess, the President can appoint whoever he wants before the Senate is back in session?

This would become known as the “Wham, Bam, thank you Ma’am” rule of appointment.

Socratease on April 25, 2013 at 10:29 PM

Arranging not required, he can just fire them.

slickwillie2001 on April 25, 2013 at 11:05 PM

Obama wants a)limitless authority over the legislature and b) a pony. SCOTUS to uphold controversial recess appointments

Fixed.

Physics Geek on April 25, 2013 at 11:15 PM

The Senate could NOT have possibly been in recess pursuant to Article I, Section 5, Clause 4 since the House never consented. Furthermore, the President does not have the Constitutional authority to draft or define the rules of either chamber. The Senate, by its own motion, was in pro forma session. Now, President Obama and his friends might want to claim that pro forma sessions aren’t really sessions, but then they will have to explain how the Senate managed to pass an extension of the payroll tax holiday during one of those sessions.

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 individuals to the NLRB on 14 December 2011 and then made the “non-recess-recess” appointments on 4 January 2012…BEFORE THE NOMINEES HAD EVEN COMPLETED THE REQUISITE DOCUMENT SUBMISSIONS AND HARRY REID EVEN HAD A CHANCE TO SCHEDULE HEARINGS OR A CONFIRMATION VOTE.

That’s a mere THREE WEEKS!!!

Resist We Much on April 25, 2013 at 9:36 PM

This is a GREAT post

Right_Mike on April 25, 2013 at 11:17 PM

Electrongod: “Why do we the people even vote anymore.”.

I’ve been consistent on this one; there is no reason to vote anymore.
& after Amnesty, then more Americans will feel that way.
Sad, but true.
Benedict Roberts, great name, fits him to a “T”; easy prediction: he’ll uphold anything the Dear Leader says, & if he can’t uphold it the way its written, he’ll simply change the legislation.

Belle on April 25, 2013 at 11:19 PM

Such a lie.

No, it won’t invalidate historical recess appointments.

It will invalidate Obama’s recess appointments.

HopeHeFails on April 26, 2013 at 12:19 AM

Obama wants SCOTUS to uphold controversial recess appointments

Poor Barry. Probably should have thought of that before having the Court members sit there for their own personal lecture from Teh One ™ at that SOTU address.

Yeah, that Barry. He’s one smart, savvy dude.

dissent555 on April 26, 2013 at 1:09 AM

We lose Scalia or Thomas,, we’re toast and I’m going Jerimiah Johnson.

wolly4321 on April 25, 2013 at 9:54 PM

.
You’re going to marry a Flathead woman, adopt a mute boy, and battle against Indian warriors?

Bishop on April 25, 2013 at 9:59 PM

.
Sure, why not ? … Just as soon as I meet “Paints His Shirt Red” while failing at fishing, nearly starving to death, spending a couple months with Bear Claw Chris Lapp, prying Hatchet Jack’s .50 cal Hawken “from his cold dead fingers”, and digging Del Gue out of his predicament.

listens2glenn on April 26, 2013 at 1:26 AM

I think we all can guess how the Chief Justice will react to this one.

MTF on April 26, 2013 at 8:30 AM

So the Obama Administration’s argument is basically that we’ve been violating the Constitution for so long that we should be allowed to keep doing it. Unfortunately, this idiotic reasoning may very well persuade enough justices. It has worked several times in the past.

MPan on April 26, 2013 at 8:49 AM

So once again we’re left with the nine wise men determining the fate of the country. Lovely.

Shump on April 25, 2013 at 9:30 PM

So maybe it’s time to increase it from nine? Not in the way FDR tried to, but nine people with power over 300 million is a horrible ratio and not democratic at all.

Nutstuyu on April 26, 2013 at 9:12 AM

So the Obama Administration’s argument is basically that we’ve been violating the Constitution for so long that we should be allowed to keep doing it. Unfortunately, this idiotic reasoning may very well persuade enough justices. It has worked several times in the past.

MPan on April 26, 2013 at 8:49 AM

Agreed. Precedent is everything in our court system. SCOTUS will roll over on this one. Likely 6-3.

The imperial presidency leading to eventual dictatorship. We were warned about our ability to keep the Republic and rest assured we can not.

Carnac on April 26, 2013 at 9:32 AM

It would deem invalid hundreds of recess appointments made by Presidents since early in the Nation’s history.

So, it would invalidate a lot of the last 10 presidents’ appointments, or so. And, maybe 1 per administration before that? I mean, c’mon, “hundreds”? In a 224 year history? Wow, that’s like… a lot. Pfft.

GWB on April 26, 2013 at 10:49 AM

The imperial presidency leading to eventual dictatorship. We were warned about our ability to keep the Republic and rest assured we can not.

Carnac on April 26, 2013 at 9:32 AM

Did you see today’s Day-by-Day?

GWB on April 26, 2013 at 10:51 AM

In addition, as the Obama administration observes, a year’s worth of NLRB actions have been thrown into doubt by the D.C. Circuit. It won’t be easy for the justices to avoid entering the thicket on this one.

Here’s the WH’s argument:

We’ve completely ignored the Circuit Courts’ ruling and continue to operate as if it had never occured, and man oh man, just look at the mess the SCOTUS will create if they uphold the decision. A whole years worth of NLRB work wasted…..

Sorry….who didn’t abide by the courts’ decision? You can’t claim harm because you didn’t follow the courts decision.

BobMbx on April 26, 2013 at 12:03 PM

BTW, there is no case for the WH.

The federal register will clearly indicate that the Senate was in fact in session on that day. The executive branch has no authority in determining when or if the Senate is in session, so any argument he makes has no foundation.

BobMbx on April 26, 2013 at 12:08 PM

I am so sick of this criminal and his co-thiefs.

avagreen on April 26, 2013 at 12:29 PM