Uh oh: Second appeals court invalidates Obama’s questionable “recess” appointments

posted at 4:41 pm on May 16, 2013 by Mary Katharine Ham

Remember that time in 2012 when President Obama unilaterally declared the Senate in recess so he could make “recess” appointments? During the “recess,” he appointed three people to the National Labor Relations Board and controversial Richard Cordray to head the new Consumer Financial Protection Bureau.

The case has been winding its way through courts since then, with the appointments and every action taken by their respective agencies in the interim hanging in the balance. In January, the three-judge U.S. Court of Appeals for the D.C. Circuit ruled the NLRB appointments were unconstitutional (Cordray’s appointment is part of a separate case).

Ed noted the stakes at the time of the ruling:

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.

A 3rd Circuit verdict today is the result of one of those NLRB rulings being brought to court. It was a 2-1 decision:

The 3rd Circuit case centered on decisions the NLRB made on the authority of three members including Craig Becker, who was appointed by the president on March 27, 2010, while the Senate was adjourned for two weeks.

The case was brought by a New Jersey nursing and rehabilitation center whose nurses were allowed to form a union by one such NLRB decision. The facility, New Vista, contended that the board’s decision was invalid because it did not have enough members active when the decision was issued because the naming of Becker to the board was not a valid recess appointment.

The NLRB must have three members participate in a decision for it to be valid, and the court found that because Becker was not appointed during a break between sessions of Congress, he was not a valid member of the board and thus invalidated the NLRB’s orders.

In April, the White House asked SCOTUS to back it on this. Stay tuned. The case has the potential, not just to mess with these appointments, but with the tradition of the recess appointment, more broadly.

Cue a badly timed Richard Trumka op-ed claiming this is all the doing of dastardly extremist Republicans. Bingo.


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rob verdi on May 16, 2013 at 4:37 PM

The case has the potential, not just to mess with these appointments, but with the tradition of the recess appointment, more broadly.

IIRC, the court decisions will limit recess appointments to those positions which become vacant prior to, but, not during Congressional sessions. I may not have that exactly right, but I recall it does limit future recess appointment procedures.

a capella on May 16, 2013 at 4:41 PM

Ha! I thought O was a Constitutional Law Scholar or something?

JAM on May 16, 2013 at 4:42 PM

The Chief Justice will declare the recess a “tax.”

aunursa on May 16, 2013 at 4:42 PM

And when we finally get his birth certificate and show Obama was ineligible, then all the crap for the past 8 years can be nullified as well.

txdoc on May 16, 2013 at 4:43 PM

NRLB-free is the way to be. To the rest of America, sucks to be you.

blammm on May 16, 2013 at 4:43 PM

The Chief Justice will declare the recess a “tax.”

aunursa on May 16, 2013 at 4:42 PM

I know it doesn’t make any sense. But then neither does Obamacare.

aunursa on May 16, 2013 at 4:43 PM

Ha! I thought O was a Constitutional Law Scholar or something?

JAM on May 16, 2013 at 4:42 PM

More like “something”.

HiJack on May 16, 2013 at 4:45 PM

There are new mortgage rules that will go into affect on January 10, 2014. Corday’s was the person that approved those rules. I wonder what does it mean for those rules.

Oil Can on May 16, 2013 at 4:46 PM

Article I, Section 5, Clause 4:

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 of Representatives NEVER consented to a recess in December 2011; thus, the Senate could NOT be in recess.

Furthermore, the Senate, itself, had not declared itself in recess and was in pro forma session. If the administration and its apologists want to argue that pro forma sessions don’t really count because ‘Congress isn’t really conducting any business,’ then please explain how the Senate passed the payroll holiday extension during one of those recesses in December 2011.

Additionally, the appointments to the NLRB had not even submitted all of their paperwork nor had Harry Reid scheduled any votes. Two were nominated and then ‘recess-appointed’ in 3 weeks.

Finally, this is a separation of powers issue. While the President can convene extraordinary sessions of one or both Houses of Congress or adjourn Congress, if the two Houses cannot agree on a date for adjournment under Article II, Section 3, Clause 3, pursuant to Article I, Section 5, Clause 2, ‘each House can determine its own Rules.’ The President of the United States cannot define recess or decide when the Senate is or is not in recess.

Resist We Much on May 16, 2013 at 4:48 PM

The Chief Justice will declare the recess a “tax.”

aunursa on May 16, 2013 at 4:42 PM

Get over it. He made a mistake. He’s also made some excellent rulings. No one is perfect.

jawkneemusic on May 16, 2013 at 4:49 PM

IIRC, the court decisions will limit recess appointments to those positions which become vacant prior to, but, not during Congressional sessions. I may not have that exactly right, but I recall it does limit future recess appointment procedures.

a capella on May 16, 2013 at 4:41 PM

The original court decision said that the recess appointment power only applied when the vacancy actually occurred during the recess itself. In other words, you can’t use the recess appointment power to appoint someone that the Senate has already had the opportunity to consider and has either rejected or refused to vote on.

In modern times, there is virtually no need for recess appointments what-so-ever. Congress is now a full-time body, out of session for very small periods of time. And should there be a vacancy so urgent as to require an immediate decision, modern communication and transportation means that the Senate could re-assemble within 24 hours to consider it.

Shump on May 16, 2013 at 4:49 PM

So which agency will leak personal confidential info on the judge to the press and call it a unexpected hack…

IRS

FBI

HHS

EEOC

Hmmmmm….

workingclass artist on May 16, 2013 at 4:49 PM

Obama Zod bleeds.

VorDaj on May 16, 2013 at 4:50 PM

will they ever run out of exploding cigars?

DanMan on May 16, 2013 at 4:50 PM

Most lawless President ever. America’s Hugo Chavez.

VorDaj on May 16, 2013 at 4:51 PM

No wonder he called in the Marines (to hold his umbrella today)” — Akzed

Schadenfreude on May 16, 2013 at 4:51 PM

Nero Baracki Obamus

Oil Can on May 16, 2013 at 4:51 PM

OT – The TEA party was to hold a presser today. Did it take place, yet?

Schadenfreude on May 16, 2013 at 4:52 PM

Which new law will Obama talk about now?

Whom will he blame?

Who is accountable?

Schadenfreude on May 16, 2013 at 4:53 PM

Too bad they couldn’t afford to hire more rogue employees at the IRS thanks to sequestration. Clearly, there were more people who needed a little persuasion to see things the rightcorrect way.

Lily on May 16, 2013 at 4:54 PM

Shump on May 16, 2013 at 4:49 PM

Thanks.

a capella on May 16, 2013 at 4:56 PM

Of all the pictures of Choomboy, that cover photo for this post is one of my favorites. Why does that Bowie/Queen song “Pressure” keep running through my head?

SailorMark on May 16, 2013 at 4:58 PM

Call me cynical but, with a man like Holder as the top cop in a “land of laws,” why does any of this matter?

—sorry to be such an off-topic downer…

mjbrooks3 on May 16, 2013 at 4:59 PM

Get over it. He made a mistake. He’s also made some excellent rulings. No one is perfect.

The Captain of the Titanic made a lot of great decisions too.

Chriscom on May 16, 2013 at 4:59 PM

I see a Presidential resignation coming.

And I’m not kidding. I don’t think he wants to do it. I don’t think he likes it. His fantasy about being president bears no relation to the reality of it.

I really think one day he’s gonna wake up and say “F**k it, I’m done”

BobMbx on May 16, 2013 at 5:00 PM

Heheheheh.

annoyinglittletwerp on May 16, 2013 at 5:01 PM

Barack is a constipational scatological scholar.

SparkPlug on May 16, 2013 at 5:01 PM

Breaking – 2nd guy leaving the IRS “to retire in June”.

How cool, they all retire, with the best of bennies.

You, the fools who sustain them, are audited and harrassed by them.

What a county, No Drama, Obama!!!

It couldn’t be made up in fiction, never.

Schadenfreude on May 16, 2013 at 5:02 PM

Bwaa haa haaa.

Obama’s failure horn is sounding all over the US.

portlandon on May 16, 2013 at 5:02 PM

Heheheheh.

annoyinglittletwerp on May 16, 2013 at 5:01 PM

O_o <–evil laugh inserted by Alt.

SparkPlug on May 16, 2013 at 5:05 PM

After the initial Circuit Court of Appeals ruling that the appointment was invalid, that the NLRB therefore did not have a quorum, and therefore all its rulings were invalid; Obama told the courts to FOAD. And at his order, they still operated. Now we have a second ruling. Given what we have learned from their own mouths this week about the absolute abhorrence the administration has for operating under the law and Constitution; what good will a second ruling do?

Obama will ignore the Constitution, the law and the courts. Again.

Somebody explain again the concept of governmental legitimacy as applied to the United States, please.

Subotai Bahadur on May 16, 2013 at 5:05 PM

I see a Presidential resignation coming.

And I’m not kidding. I don’t think he wants to do it. I don’t think he likes it. His fantasy about being president bears no relation to the reality of it.

I really think one day he’s gonna wake up and say “F**k it, I’m done”

BobMbx on May 16, 2013 at 5:00 PM

I dunno… Fast And Furious would have done in any other President…

PointnClick on May 16, 2013 at 5:08 PM

Activist Republican Judges!

Del Dolemonte on May 16, 2013 at 5:08 PM

Can anyone here hack into King Obama’s Mr. Teleprompter at just the right time … … like real soon??!! Before he even realizes what he is saying, we may be free, free at last, thank God Almighty, free at last!!

Good afternoon subjects. I mean, um, ah, my fellow Muslims. I mean, um, ah, my fellow Americans. I am hereby resigning from the office of your God, I mean, um, ah your Supreme Ruler. I mean the, um, ah, Presidency. I will spend some of my remaining time on Earth trying to forgive myself for making Kenya, I mean, um, ah, Venezuela, I mean, um, ah, America worse off when I could have made, um, ah, America better off with the same effort and I will spend the rest of my life living in a hut with my half-brother whats-his-name in Kenya studying the Holy Qur’an. I mean, um, ah, studying golf, I mean, um, ah, studying horticulture. Allah willing. I mean, um, ah, God damn you. I mean, um, ah, um, ah, um, ah, um, God bless you.

VorDaj on May 16, 2013 at 5:10 PM

Get over it. He made a mistake. He’s also made some excellent rulings. No one is perfect.

jawkneemusic on May 16, 2013 at 4:49 PM

I look at that ruling the way I look at RoeVWade.

Roberts put 0bama care just where it belonged, in the hands of the voters. The Burger court, didn’t.

cozmo on May 16, 2013 at 5:11 PM

O_o <–evil laugh inserted by Alt.

SparkPlug on May 16, 2013 at 5:05 PM

Sorry, it don’t work.

Evil laugh and bunny suit just don’t go together. Even when the bunny is packin’.

cozmo on May 16, 2013 at 5:15 PM

I see a Presidential resignation coming.

And I’m not kidding. I don’t think he wants to do it. I don’t think he likes it. His fantasy about being president bears no relation to the reality of it.

I really think one day he’s gonna wake up and say “F**k it, I’m done”

BobMbx on May 16, 2013 at 5:00 PM

I dunno… Fast And Furious would have done in any other President…

PointnClick on May 16, 2013 at 5:08 PM

He’s a very lazy man, but he can’t do better. He can pick his own hours, eat like a Persian King, vacation all over the world whenever he wants, and summon Hollywood performers to the royal court twice a week.

All he really has to do that might kind of look like work is sign whatever Valerie puts in front of him and do occasional fundraisers. If we can really make his life hell with investigations he might lose interest, but the terrible trio of Mooch, Val and the Mother in Law would never let him leave.

slickwillie2001 on May 16, 2013 at 5:18 PM

Del Dolemonte on May 16, 2013 at 5:08 PM

Thanks, Del. Sometimes we have to pinch-hit for our trolls.

notropis on May 16, 2013 at 5:18 PM

I see a Presidential resignation coming.

And I’m not kidding. I don’t think he wants to do it. I don’t think he likes it. His fantasy about being president bears no relation to the reality of it.

I really think one day he’s gonna wake up and say “F**k it, I’m done”

BobMbx on May 16, 2013 at 5:00 PM

Biden’s fantasy.

meci on May 16, 2013 at 5:19 PM

Wait, wait – people still think Obama will give a crap and change course or something?

Midas on May 16, 2013 at 5:20 PM

The Chief Justice will declare the recess a “tax.”

aunursa on May 16, 2013 at 4:42 PM

Roberts’ reasoning for siding with Team SCOAMT again – the two Houses of Congress didn’t agree on a date of adjournment, so Obama stepped in with his Constitutional authority to adjourn them (Article II, Section 3), and thus he can do recess appointments.

Steve Eggleston on May 16, 2013 at 5:21 PM

So which low-level rogue employee decided the Senate was in recess and accidentally appointed people when it wasn’t totally legit?

C’mon people we need to know who’s ass to kick here.

Lily on May 16, 2013 at 5:21 PM

I see a Presidential resignation coming.

And I’m not kidding. I don’t think he wants to do it. I don’t think he likes it. His fantasy about being president bears no relation to the reality of it.

I really think one day he’s gonna wake up and say “F**k it, I’m done”

BobMbx on May 16, 2013 at 5:00 PM

More likely, he’ll try to stay on past 11:59 am EST 1/20/2017.

Steve Eggleston on May 16, 2013 at 5:22 PM

I see a Presidential resignation coming.

And I’m not kidding. I don’t think he wants to do it. I don’t think he likes it. His fantasy about being president bears no relation to the reality of it.

I really think one day he’s gonna wake up and say “F**k it, I’m done”

BobMbx on May 16, 2013 at 5:00 PM

Or, perhaps he will say “F**k it, I’m King” and simply formalize his behavior.

Midas on May 16, 2013 at 5:27 PM

Roberts’ reasoning for siding with Team SCOAMT again – the two Houses of Congress didn’t agree on a date of adjournment, so Obama stepped in with his Constitutional authority to adjourn them (Article II, Section 3), and thus he can do recess appointments.

Steve Eggleston on May 16, 2013 at 5:21 PM

They didn’t disagree?

cptacek on May 16, 2013 at 5:30 PM

Since the President was elected (and most likely, re-elected) through illegal means, why wouldn’t his appointments be of the same manner?
C’mon, this is the reign of Barack-I -
Show some respect!

Another Drew on May 16, 2013 at 5:34 PM

I hope the Judge’s taxes are in order, the audit letter is in the mail.

rjoco1 on May 16, 2013 at 5:35 PM

A 3rd Circuit verdict today is the result of one of those NLRB rulings being brought to court. It was a 2-1 decision:

Ok, seriously. What was wrong with the 1 in this case? It’s about as cut-and-dried as you get that the NLRB had no standing at this point.

There Goes the Neighborhood on May 16, 2013 at 5:37 PM

I see a Presidential resignation coming.

And I’m not kidding. I don’t think he wants to do it. I don’t think he likes it. His fantasy about being president bears no relation to the reality of it.

I really think one day he’s gonna wake up and say “F**k it, I’m done”

BobMbx on May 16, 2013 at 5:00 PM

I wish, but I doubt it. Even though he clearly doesn’t like doing presidential work (as opposed to being president)his ego is just too massive.

exliberal on May 16, 2013 at 5:37 PM

They didn’t disagree?

cptacek on May 16, 2013 at 5:30 PM

It’s all in the semantics. In Roberts’/SCOAMT’s world, a lack of agreement is a disagreement, even if there was an agreement.

Steve Eggleston on May 16, 2013 at 5:42 PM

Ok, seriously. What was wrong with the 1 in this case? It’s about as cut-and-dried as you get that the NLRB had no standing at this point.

There Goes the Neighborhood on May 16, 2013 at 5:37 PM

Joseph Greenaway got onto a district bench under Clinton and owes his appellate bench to Teh SCOAMT. That explains everything.

Steve Eggleston on May 16, 2013 at 5:48 PM

Ok, seriously. What was wrong with the 1 in this case? It’s about as cut-and-dried as you get that the NLRB had no standing at this point.

There Goes the Neighborhood on May 16, 2013 at 5:37 PM

Same thing that’s wrong with ‘the 4′ on the SC.

Midas on May 16, 2013 at 5:54 PM

Scooter’s having one Hell of a week.

LOL.

I sincerely hope to the God of Just Desserts it continues for months to come.

BigWyo on May 16, 2013 at 6:03 PM

Resist We Much on May 16, 2013 at 6:02 PM

Hold the phone there legal beagle.

I was surprised at where Japan fell on that list.

cozmo on May 16, 2013 at 6:14 PM

It continues to be a very bad week for the White House.

Bob's Kid on May 16, 2013 at 6:18 PM

Cue a badly timed Richard Trumka op-ed claiming this is all the doing of dastardly extremist Republicans.

Richard Trumka is a paranoid conspiracist.

Dusty on May 16, 2013 at 6:39 PM

I see a Presidential resignation coming.

BobMbx on May 16, 2013 at 5:00 PM

.
Yeah, sure, he’ll resign in favor or “King” or “Emperor” or “White House Squatter for Life.” No way will he give up power willingly just because.

ExpressoBold on May 16, 2013 at 6:48 PM

Remember that time in 2012 when President Obama unilaterally declared the Senate in recess so he could make “recess” appointments? During the “recess,” he appointed three people to the National Labor Relations Board and controversial Richard Cordray to head the new Consumer Financial Protection Bureau.

This is not merely a matter of a nomination being invalid but of an outrageous abuse of power and violation of the Constitution by the Dog-Eater occupooping the White House. This is beyond impeachable. This is orange jumpsuit material. And hard labor.

Oh well … just add it to the third volume of outrageous, impeachable, criminal acts committed by the 84 IQ Indonesian Dog-Eating America-Hater. The 4th volume is set to be started soon …

ThePrimordialOrderedPair on May 16, 2013 at 6:52 PM

I see a Presidential resignation coming.

And I’m not kidding. I don’t think he wants to do it. I don’t think he likes it. His fantasy about being president bears no relation to the reality of it.

I really think one day he’s gonna wake up and say “F**k it, I’m done”

BobMbx on May 16, 2013 at 5:00 PM

No way. They’ll have to drag him out kicking and screaming the whole way. It’s going to take another two or three of those Umbrella Marines just to separate the Mooch from the White House lobster locker.

trigon on May 16, 2013 at 6:52 PM

No way. They’ll have to drag him out kicking and screaming the whole way. It’s going to take another two or three of those Umbrella Marines just to separate the Mooch from the White House lobster locker.

trigon on May 16, 2013 at 6:52 PM

Yup. Think of Barky’s leftist tin-foil buddy, Zelaya, and what it took to get him out of Honduras after his failed coup attempt. Barky defended Zelaya saying that he was popularly elected and that overrode any Constitutional considerations. Yes, he certainly did. Good times to look forward to, here. I wonder if Costa Rica will take the Dog-Eating Retard.

ThePrimordialOrderedPair on May 16, 2013 at 7:00 PM

Hey, Barry, dweebocraps, and libbabies:

Oh, the tears of unfathomable sadness are yummy…

Watch them all swirl down the toilet, your opium dreams of socialist conquest. Even if he doesn’t willingly vacate office, Barry is such a wounded duck, you might as well stuff him with rice, and call him done.

Keep defending him, keep following orders, libbabies. You’re cute when you ball your little fists and scream your incoherent talking points, spit up your discredited dialectic, and smear your fetid rhetoric all over yourselves.

No, I don’t like any of you. No, I don’t feel like engaging any of you. No, I will not forgive your political excesses.

….to the last I grapple with thee; from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.

Enjoy your tears of despair.

creekspecter on May 16, 2013 at 7:05 PM

the appointments and every action taken by their respective agencies in the interim hanging in the balance.

Now consider for a moment the effect of Obama being ineligible to hold the office of President.

Obama has never publicly released any documentation that is acceptable for a Form I-9, Employment Eligibility Verification, which he is LEGALLY REQUIRED to produce, to prove his eligibility to not only work in the United States but also hold the office of President. The only document that is both acceptable for a Form I-9 and could prove birth location and identity of parents (relevant to prove natural born citizenship) is a HARDCOPY Birth Certificate. A URL to a PDF (which an official Sheriff’s investigation said is “UNDOUBTEDLY A FRAUD”) is NOT ACCEPTABLE DOCUMENTATION for the LEGALLY REQUIRED Form I-9.

All employees, citizens and noncitizens, hired after November 6, 1986 and working in the United States must complete a Form I-9, Employment Eligibility Verification.

If the “Obama birth narrative” is 100% true, then he was born on U.S. soil to an underage mother and British subject father. By both Natural Law and British Law, he was born a natural born subject of the British crown… exactly the kind of person our Founders did not want commanding our military. Being a “citizen” is sufficient for a House Representative or a Senator, but unless you were a citizen when the Constitution was ratified, that is not sufficient for a President or Vice-President… the higher standard of “natural born citizen” applies. Not “citizen”, not “born citizen”, but “natural born citizen”. The Supreme Court in Minor V. Happersett construed “natural born citizen” as “born in a country of parents who were its citizens”. The same Court said

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 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 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.

If the “Obama birth narrative” is 100% true, then he is not a natural born citizen of the United States. Under that scenario, he could be a citizen, but not a natural born citizen.

And if the “Obama birth narrative” is NOT 100% true, for example if his true father was Frank Marshall Davis, then he could be a natural born citizen of the United States, but he would be guilty of forgery, fraud, perjury, obstruction of justice, etc.

EITHER WAY, he should not be holding the office of President.

I return to where I started:

the appointments and every action taken by their respective agencies in the interim hanging in the balance.

Imagine if EVERY appointment Obama made, and EVERY bill he signed were invalidated becuase he usurped the office and power of the Presidency.

Obamacare? Invalid.
Two Supreme Court nominations? Invalid.
ETC.

ITguy on May 16, 2013 at 7:26 PM

When it rains, it pours.

Yeah and sometimes it rains anvils.

eyesky on May 16, 2013 at 8:58 PM

Ha! I thought O was a Constitutional Law Scholar or something?

JAM on May 16, 2013 at 4:42 PM

He studied constitutional law from a Living Constitution perspective, which says the constitution means not what it’s authors meant, but “whatever I think it ought to mean in today’s society”.

netster007x on May 16, 2013 at 10:33 PM

Get over it. He made a mistake. He’s also made some excellent rulings. No one is perfect.

jawkneemusic on May 16, 2013 at 4:49 PM

It wasn’t a mistake. It was a deliberate act.

Either he was threatened or he was paid off.

fossten on May 16, 2013 at 11:07 PM

Second appeals court invalidates Obama’s questionable “recess” appointments

More evidence that Obama has nothing but contempt for our Constitution.

He aspires to be the dictator in charge…after he turns the once-great USA into a bankrupt third-world country.

landlines on May 17, 2013 at 1:24 AM

Ha! I thought O was a Constitutional Law Scholar or something?

As I recall he claimed merely to have been a Constitutional Law professor. He never claimed to be a Constitutional scholar.

UnrepentantCurmudgeon on May 19, 2013 at 2:22 AM