Obama Appointments Ruled Unconstitutional

[diehardgator1]

Well finally some of the courts are starting to get things right. obama appointment's to the Labor relations board has been ruled unconstitutional

"A federal appeals court has ruled that President Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel.

The U.S. Court of Appeals for the D.C. Circuit says Obama did not have the power to make recess appointments earlier this year to the National Labor Relations Board."

Read more: http://www.foxnews.com/politics/2013/01/25/court-obama-appointments-are-unconstitutional/#ixzz2J0KGdGHb

[rivergator]

Obama made the recess appointments because the Republicans blocked all appointments for two years and made the NLRB completely worthless.

[diehardgator1]

Obama made the recess appointments because the Republicans blocked all appointments for two years and made the NLRB completely worthless.

By whose standards? obama still has to follow the law even though he thinks he can do as he pleases and to hell with the law. Maybe he needs to learn the meaning of the word compromise

[rivergator]

By whose standards? obama still has to follow the law even though he thinks he can do as he pleases and to hell with the law. Maybe he needs to learn the meaning of the word compromise

So you think he's the only president to make NLRB recess appts?

[fredsanford]

By whose standards? obama still has to follow the law even though he thinks he can do as he pleases and to hell with the law. Maybe he needs to learn the meaning of the word compromise

Compromise is unreachable with those committed to defeating you as their #1 goal.

[MichaelJoeWilliamson]

Obama made the recess appointments because the Republicans blocked all appointments for two years and made the NLRB completely worthless.

This thing called the constitution apparently does not mean what you think it means.

[jimgata]

The law is the law, is the law, regardless of what Obama and his cultist members think.
The definition of compromise by Obama is to agree with him or you are biased, partisan or racist.
Obama is the most partisaned president ever and could not care less what the republicans think.

[rivergator]

This thing called the constitution apparently does not mean what you think it means.

The Republicans pulled a little gambit. Left for the holidays but didn't officially recess.

[MichaelJoeWilliamson]

The Republicans pulled a little gambit. Left for the holidays but didn't officially recess.

And this makes what Obama is doing constitutional...how?

[northgagator]

Compromise is unreachable with those committed to defeating you as their #1 goal.

You are only seeing half of the problem

Both sides have the same #1 goal.

Thus the stalemate.

[egator1245]

Obama made the recess appointments because the Republicans blocked all appointments for two years and made the NLRB completely worthless.

If the Federal Courts say it's so, it's so. Please see abortion rights.

[rivergator]

And this makes what Obama is doing constitutional...how?

because congress was technically not in recess.

[northgagator]

The Republicans pulled a little gambit. Left for the holidays but didn't officially recess.

Obama pulled a little gambit and was called on it by the court.

[rivergator]

Obama pulled a little gambit and was called on it by the court.

you don't appear to understand the issue again.

[MichaelJoeWilliamson]

because congress was technically not in recess.

Not according to the court;

"[T]he President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued," the court wrote in its decision. "Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception."

[LittleBlueLW]

I am glad to know we have so many constitutional scholars on this board.

[MichaelJoeWilliamson]

This might get interesting;

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.

[rivergator]

Not according to the court;

this explains it pretty well:

Angry Republicans argue that the Senate – which confirms or rejects most presidential nominations, but not recess appointments – was not technically in recess when Obama made his appointments on Wednesday, though it has conducted no real work since before Christmas.

They note that Congress did not approve an adjournment resolution before lawmakers left town. In addition, they say, both chambers have held brief sessions about every three days, though they've not tackled any actual legislative business.

The White House says its lawyers believe the Senate is in recess. They say the non-business, "pro forma" sessions that Congress has periodically staged are solely an attempt to block presidential appointments and do not change the fact that the Senate is in recess.

Democrats have used the same tactic that Republicans are using now.

[MichaelJoeWilliamson]

this explains it pretty well:

Not according to the court.

[malligator]

I mean this as a truly bipartisan comment...Congress sucks. I wish I could do anything I wanted, anyway I wanted, any time I wanted and get paid big bucks for doing it. They--both sides--are ridiculous. We--as citizens--no matter our political agenda--should not have to argue over the childish antics of idiots. Seriously, they (all of them) whine over semantics like children whining because their sibling got a little bigger piece of cake.

[rivergator]

Not according to the court.

Actually, that explanation fits with the court ruling very well. Try reading it again.
Republicans say they weren't in recess. White House says they were. Court decided they weren't.

[wygator]

Politicians playing politics...shocker!!!

[MichaelJoeWilliamson]

Actually, that explanation fits with the court ruling very well. Try reading it again.Republicans say they weren't in recess. White House says they were. Court decided they weren't.

Indeed. Try reading this again...


"[T]he President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued," the court wrote in its decision. "Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception."

[g8rjd]

I can't believe I missed this. I guess that's what happens when you're really busy...

Here's the opinion (http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf). I'm going to read it now.

[g8rjd]

Here's the first part I find particularly interesting. The Court's opinion appears to hand on the meaning of the word "the."

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.

[wygator]

Here's the first part I find particularly interesting. The Court's opinion appears to hand on the meaning of the word "the."

Clintonesque...

[secgator]

I am glad to know we have so many constitutional scholars on this board.

They're just following the lead of their 'consititutional scholar" in the WH. The one who views the constitution with disdain.

[g8rjd]

Oh wow. This is a really strong textual interpretation of the recess appointment clause. According to the DC Circuit, a recess appointment may only be made in "the Recess" between sessions. That goes FAR beyond Evans, a decision by the 11th Circuit and creates a conflict, which means that the Supreme Court could take this case. It also means that there are a number of federal judges and officers APPOINTED BY BOTH PARTIES who could have their appointments and even thier decisions challenged under this interpretation.

[g8rjd]

And just when you thought it was strict...the "happen" interpretation is MAJOR.

Under the DC Circuit's opinion, a vacancy that exists BEFORE the intersession recess CANNOT be filled using the recess appointment clause. This is also huge. I don't know of a President in recent history that has interpreted the clause this way. The United States has to take this case to the Supremes now.

[g8rjd]

This case conflict with three other circuit court's interpretations of the Constitution and has a major impact on years of actions by both parties. This case will go to the Supreme Court and has a VERY high likelihood of having cert. granted.

[g8rjd]

Oh wow. This is a really strong textual interpretation of the recess appointment clause. According to the DC Circuit, a recess appointment may only be made in "the Recess" between sessions. That goes FAR beyond Evans, a decision by the 11th Circuit and creates a conflict, which means that the Supreme Court could take this case. It also means that there are a number of federal judges and officers APPOINTED BY BOTH PARTIES who could have their appointments and even thier decisions challenged under this interpretation.

Okay... This may have gone a bit far. The recess appointment clause requires the appointment to return for advice and consent during the next session, so it looks like the impact of the D.C. Circuit's decision may only affect this Administration's present appointment. It does, however, significiantly affect one of the arrows in the quiver of the Office of the President.

Those that are cheering this decision because it harms the present President may not be so happy if it ends up being the reasoning of the SCOTUS and the next President of a different party has to live under it. This is a VERY limiting opinion on the meaning of the recess appointment clause that has gone far narrower than any other decision about that clause.

That being said, this is a very interesting opinion. I'm looking forward to seeing the next steps.

[MichiGator2002]

My initial reaction is to wonder if Obama will just disregard it as he has done before with adverse rulings, i.e. drilling moratorium.

[g8rjd]

My initial reaction is to wonder if Obama will just disregard it as he has done before with adverse rulings, i.e. drilling moratorium.

It's kinda hard to disregard something that means that the NLRB can't function and all its actions are void for lack of a quorum.

Just sayin'.

[108]

we the people are responsible for the elected representatives we elect

until we as a whole are sick of the dysfunction in Washington, nothing will get done

but that won't be anytime soon as Obama is considered the Anti-Christ by his opponents and the ones who elect them....so dysfunction is not punished

[MichiGator2002]

It's kinda hard to disregard something that means that the NLRB can't function and all its actions are void for lack of a quorum.

Just sayin'.

Or he tells them not to go anywhere and goes back to the old "courts have no army" default. Who is going to turn a critical eye on it? Chris Matthews? Brian Williams? The Times? Heh.

[g8rjd]

Or he tells them not to go anywhere and goes back to the old "courts have no army" default. Who is going to turn a critical eye on it? Chris Matthews? Brian Williams? The Times? Heh.

That's all well and good when you're talking federal/state relations. But this isn't that. Courts are where disputes over agency authority, including the NLRB, end up. I stand by my point. You can't ignore this decision.

They will, however, seek Supreme Court review and, if I had to guess, now, I think they'll get it.

[G8trGr8t]

we the people are responsible for the elected representatives we elect

until we as a whole are sick of the dysfunction in Washington, nothing will get done

but that won't be anytime soon as Obama is considered the Anti-Christ by his opponents and the ones who elect them....so dysfunction is not punished

and 0 Reid and Jarrett consider fiscal responsibiility insanity and refuse to consider what the other 49.7% of america wants to do. He is dismissive on conflicting opinions and either unable or unwilling to incorporate them into a bipartisan plan.

In other words, 0 doesn't know how to lead those that do not want to follow.

It takes two to create a stalemate and from where I sit, 0 seems much further from center than the pubs do. He just has the MSM helping him blame the other party. He is winning the war of appearance and reality be damned. Give the man a fish, to heck with teaching him how to fish. This entitlement mentality is not sustainable.

Maybe 0 should have considered more moderate centrist appointments instead of lifetime union memebrs/lawyers with obvious bias. Didn't have to be union busting lawyer or head of union. There are people in between but he has no use for them as they may be capable of thinking on their own.

[northgagator]

you don't appear to understand the issue again.

More than you are capable of imagining!

[MichiGator2002]

A person with either respect for the credibility and authority of the civil institution ands its ability to contradict his interests, or who feels that they could not ignore it without significant repercussions, will respect this opinion.

But the simple fact is I flat out don't think Obama is the former at all, and he is a man who exists largely beyond the reach of significant repurcussions. To wit, he can't face political repurcussions. In practical terms, he can't face legal repurcussions, because Harry Reid will tacitly immunize him from any effort to impeach or censure (symbolic anyway) him, and, again, the courts have no army, no enforcers. And as for cultural/social repurcussion... that only goes as far as the engines of culture take it, and again, who is going to renounce him?

Sorry to be cynical. It isn't like I just automatically expect he would ignore this the way he did the moratorium, it is just I can't fathom being credulous enough to be surprised if he did.

[g8rjd]

A person with either respect for the credibility and authority of the civil institution ands its ability to contradict his interests, or who feels that they could not ignore it without significant repercussions, will respect this opinion.
But the simple fact is I flat out don't think Obama is the former at all, and he is a man who exists largely beyond the reach of significant repurcussions. To wit, he can't face political repurcussions. In practical terms, he can't face legal repurcussions, because Harry Reid will tacitly immunize him from any effort to impeach or censure (symbolic anyway) him, and, again, the courts have no army, no enforcers. And as for cultural/social repurcussion... that only goes as far as the engines of culture take it, and again, who is going to renounce him?

Sorry to be cynical. It isn't like I just automatically expect he would ignore this the way he did the moratorium, it is just I can't fathom being credulous enough to be surprised if he did.

Wow. Quite a strawman you set up there. Fact of the matter is that this opinion (1) goes beyond the issues needed to resolve the case to the detriment of the Office of the President and (2) conflicts on both issues with multiple other circuits on a significant constitutional question. Those are each reasons to seek Supreme Court review and both together are what justifies granting it. Saying, "oh, I'm not going to bother to get the view of the highest court in the land" on a question this significant to the branches of government operations could be an abdication of responsibility to the Office of the President itself, whomever its occupant. If I were the SG's office, I would recommend seeking certiorari, if, for no other reason, to obtain clarity and final resolution of a very significant constitutional question.

[MichiGator2002]

What strawman? Nothing I said even pertains to the content of the opinion, just to the likelihood and rationale behind the administration just ignoring it or not. I mean, the opinion could have been as modestly drawn as you please, but that it is adverse to him on the central "does he get his way" point is all that it takes to set off the entirely legitimate concern that this is one he will just ignore. And that is hardly a false substitute premise, since the man immediately turned around and ignored a district court shooting down his drilling moratorium.

I mean, just to be clear, has this opinion gone into effect? Have his appointees left their positions? If yes and no respectively, well, there we are.

[g8rjd]

What strawman? Nothing I said even pertains to the content of the opinion, just to the likelihood and rationale behind the administration just ignoring it or not. I mean, the opinion could have been as modestly drawn as you please, but that it is adverse to him on the central "does he get his way" point is all that it takes to set off the entirely legitimate concern that this is one he will just ignore. And that is hardly a false substitute premise, since the man immediately turned around and ignored a district court shooting down his drilling moratorium.

I mean, just to be clear, has this opinion gone into effect? Have his appointees left their positions? If yes and no respectively, well, there we are.

"Respect this opinion" generally means not to seek further review and, implies the content of the opinion. If that is not what you intended, then it was a miscommunication based on phrases I'm used to hearing in this context. The false premise I was referring to was to say, "If you appeal the DC Circuit's decision, you have no respect for the 'crediblity and authority of a civil institution.'" Indeed, seeking review of perceived legal errors is what our entire system is set up to do. That is how I read your post. If that is not what you indeed, I can accept that.

The reason that I say that the opinion goes beyond what it needs to is that courts are not supposed to address arguments, particularly constitutional arguments, that they do not need to to resolve the case. And, here, that portion of the opinion overrules a well-accepted executive power since the mid-1800's. That is the basis of the concurring opinion. So, it is not a question of "modest" or "immodest." It is a legal boundry that the DC Circuit probably should not have crossed.

To answer your question, the opinion has controlling effect when the Circuit Court's "mandate" issues to the District Court, which occurs after a motion for rehearing or rehearing en banc may be filed. Those are highly unlikely to be granted. However, the DC Circuit can stay its mandate until certiorari is decided. The United States can seek review of the US Supreme Court within 90 days. Nevertheless, the mere issuance of the opinion will now cause the NLRB's actions to come to a screeching halt because anything the agency does is now suspect to the adversly affected party. Probably the same result with the Comsumer Protection agency as well.

[PIMking]

The Republicans pulled a little gambit. Left for the holidays but didn't officially recess.

Didn't Pelosi or Reid do something like that when the Obama care crap came around? something like shutting off the lights in the capitol and left? (serious question)

[wgbgator]

Man, if this had decision had come a little sooner, I wonder how that would have impacted fillibuster reform discusions.

[fredsanford]

Not surprising from a Reagan, Bush I and Bush II panel.

Odd that they had no issue with Bush II's frequent use of this tool.

[JerseyGator01]

I guess the federal government must be really broke since the bribery check obviously bounced.

[g8rjd]

Man, if this had decision had come a little sooner, I wonder how that would have impacted fillibuster reform discusions.

They would have been fiibustered. :) (Good comment...I thought about that too.)

[myamiG8R]

obama's entire presidency is unconstitutional... where's the news here?

[ArtVandelay]

obama's entire presidency is unconstitutional... where's the news here?

Because he wasn't born in the US?

Care to elaborate?

[oragator1]

Shocking that this thread turned into a political catfight.
The pubs said they were in session, Obama rolled the dice on it and lost, even a session solely designed to prevent what he did is a session. Unless the SC overturns it, the legislative branch wins a small victory over the executive, which isn't a bad thing given the expansion of executive orders, decisions on sending to troops to "war" etc. It creates more dysfunction in the short term, but longer term it's a good thing in my mind.

[myamiG8R]

Because he wasn't born in the US?

Care to elaborate?

i don't find much legitimacy in barack obama's presidency... but hey, that's just my view... walking through all the details will not change the fact that he is still, in fact, the president...

[wargunfan]

The whole keeping the Senate "technically" in session in order to prevent recess appointments was invented by Harry Reid to prevent W from making recess appointments. People who live in glass houses really shouldn't throw stones.

[MichaelJoeWilliamson]

The whole keeping the Senate "technically" in session in order to prevent recess appointments was invented by Harry Reid to prevent W from making recess appointments. People who live in glass houses really shouldn't throw stones.

Yep. Recess appointments are nothing new. But inventing situations where the Senate is technically in session but not actually working is a fairly recent phenomenon, one invented during the last Administration.

When Obama got frustrated with a gambit invented when he was in Congress, he decided he could unilaterally decide when the Senate was in session or not. The court disagreed with him.

Hoisted on their own petard, as it were.

[DaveFla]

So you think he's the only president to make NLRB recess appts?

So, what is it like to be going 80 mph, then throw it in reverse?

I don't recall that claim having been made. Except for just now, by YOU.

[rivergator]

So, what is it like to be going 80 mph, then throw it in reverse?

I don't recall that claim having been made. Except for just now, by YOU.

so you agree that these horrible things that Obama is doing have been done by pretty much every president?

[wargunfan]

From the NYT: The court rejected the Justice Department’s argument in brief but scathing language.

“An interpretation of ‘the recess’ that permits the president to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the president free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction,” wrote Judge David B. Sentelle. “This cannot be the law.”

Our scofflaw president cannot pick and choose which laws to obey. So says the court.

[vangator1]

Oclown should be impeached and thrown in prison.

[rivergator]

This is from John P. Elwood, former senior deputy in the Justice Department’s Office of Legal Counsel and former assistant to the Solicitor General, pointing out that the appointments Obama made have been very common:

The main thrust of the court’s opinion is that the recess appointment power extends only to intersession recesses–recesses between sessions of Congress–and not to intrasession recesses. Intrasession recess appointments have been made fairly commonly since WWII, and have been particularly common since the Reagan Administration. UN Ambassador John Bolton and Judge William H. Pryor, Jr. are two of the more high-profile intrasession recess appointments in recent years. The D.C. Circuit’s holding is is in acknowledged conflict with an Eleventh Circuit opinion from 2004. Intrasession appointments may be even more common than intersession appointments these days (because the appointment runs to “the End of [Congress's] next Session,” they last longer), so this is a very important ruling as a practical matter.

link (http://www.volokh.com/2013/01/25/dc-circuit-strikes-down-president-obamas-recess-appointments/)

[MichaelJoeWilliamson]

river, where you OK with the Senate doing this during the Bush era? If you recall Democrats started keeping the Senate in "pro forma" session so that Bush could not end-run the Advise and Consent process with a recess appointment. They'd gavel in for a few moments once every couple of days, and then gavel out again. Of course, Bush never tried an end run like Obama.

Now that the Republicans followed suit, Obama did not like it so much. He became increasingly frustrated with his inability to appoint people to key boards. So he did what he is wont to do. "To hell with the constitution" and he simply declared that they were effectively in recess because they weren't doing anything.

[jimgata]

The question is not whether Obama made a recess appointment, but was the senate in recess? The courts said they were. That is the only argument and the rest of the chatter is bs.

[g8rjd]

The question is not whether Obama made a recess appointment, but was the senate in recess? The courts said they were. That is the only argument and the rest of the chatter is bs.

I believe the DC Circuit said they were not in recess and that "the Recess" only refers to the inter-session recess of Congress. As I indicated before, this is not the interpretation of a number of other Circuits, which, added to the significant reduction in an understood power of the Office of the President (the "Vacancy occurring" provision), is why this case will almost certainly go to the Supreme Court. The President may lose on the first issue ("the Recess", although that is far from certain), but I would be surprised if the DC Circuit's interpretation of the second issue (when a vacancy occurs vs. when a vacancy exists) carries the day.

[jimgata]

I really goofed. The courts said there not on recess. I forgot the Not, when I posted.
Should have proof read it.

[rivergator]

river, where you OK with the Senate doing this during the Bush era? If you recall Democrats started keeping the Senate in "pro forma" session so that Bush could not end-run the Advise and Consent process with a recess appointment. They'd gavel in for a few moments once every couple of days, and then gavel out again. Of course, Bush never tried an end run like Obama.

Now that the Republicans followed suit, Obama did not like it so much. He became increasingly frustrated with his inability to appoint people to key boards. So he did what he is wont to do. "To hell with the constitution" and he simply declared that they were effectively in recess because they weren't doing anything.

I'm actually not familiar with exactly what the Senate was doing then. You could well be right. But my point is simple: No matter how you guys try paint Obama's recess appointments as some kind of heinous crime, the fact is that every president has been doing the exact same thing.

[g8rjd]

I really goofed. The courts said there not on recess. I forgot the Not, when I posted.
Should have proof read it.

No problem Jim. Happens to us all. It's only a message board, after all. :)

[The_Graygator]

Oops!

Look like our new "king" might have overstepped his bounds just a bit. lol

It's good to see Obama's ego take a hit like this and remind him that he isn't our "sovereign" or "monarch".

[MichaelJoeWilliamson]

But my point is simple: No matter how you guys try paint Obama's recess appointments as some kind of heinous crime, the fact is that every president has been doing the exact same thing.

That is simply not true. No other President ever, EVER declared that congress was in recess when they were not.

Read the court opinion. That is it's genesis.

[rivergator]

That is simply not true. No other President ever, EVER declared that congress was in recess when they were not.

Read the court opinion. That is it's genesis.

According the analysis I posted, intrasession appts, which is what Obama did, are common. That's how John Bolton was appointed, for example.

[MichaelJoeWilliamson]

Here is a pretty good discussion

[quote]On January 4, 2012, Mr. Obama bypassed the Senate's advice and consent power by naming three new members of the National Labor Relations Board and appointing Richard Cordray to run the Consumer Financial Protection Bureau. Other Presidents have made recess appointments and we've supported that executive authority.

But here's the Obama kicker: He consciously made those "recess" appointments when the Senate wasn't in recess but was conducting pro-forma sessions precisely so Mr. Obama couldn't make a recess appointment. No President to our knowledge had ever tried that one, no doubt because it means the executive can decide on his own when a co-equal branch of government is in session.

"An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement," wrote Chief Judge David Sentelle for the court, "giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."

Judge Sentelle added, in a clear warning to the lawyers who let Mr. Obama walk out on this limb, that "Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers."

Obama's sense of Constitutional Entitlement (http://online.wsj.com/article/SB10001424127887323539804578263793332301584.html?m od=WSJ_Opinion_LEADTop)

[MichiGator2002]

According the analysis I posted, intrasession appts, which is what Obama did, are common. That's how John Bolton was appointed, for example.

It is flat out deceitful to act like there is no distinction between intrasession appointments and intrasession appointments under the Democrat-contrived pro forma session. The court through both under the bus, but the bottom line is only the latter got them into court. And the reason why it got into court is because Bush declined to flout Congress' own definition of what being in session was. Unless you are now retroactively renouncing the invention of the pro forma session as a way to thwart Bush, you are being dishonest to the bone in this whole argument. Bush could have substituted his own judgment for Congress' on what is or isn't a session, but he had the humility to decide he was beaten. Obama didn't.

[rivergator]

It is flat out deceitful to act like there is no distinction between intrasession appointments and intrasession appointments under the Democrat-contrived pro forma session. The court through both under the bus, but the bottom line is only the latter got them into court. And the reason why it got into court is because Bush declined to flout Congress' own definition of what being in session was. Unless you are now retroactively renouncing the invention of the pro forma session as a way to thwart Bush, you are being dishonest to the bone in this whole argument. Bush could have substituted his own judgment for Congress' on what is or isn't a session, but he had the humility to decide he was beaten. Obama didn't.

Weren't Obama's three appointments done while the Senate was holding pro-forma sessions?

[MichiGator2002]

Weren't Obama's three appointments done while the Senate was holding pro-forma sessions?

Which was... my point? Bush accepted that line Congress drew, Obama didn't. That the court has now come back and said to help with pro forma, recess appointments aren't for either scenario is somewhat tangential, it just says that we have seen the legislature and the executive playing conlaw tiddlywinks for a decade. But we only got to court, that proverbial boxing match only ended, when Obama started fighting Golota style. The court has said here that the fight itself was unsanctioned, doesn't really change how the fighters conducted themselves. Bush may end up being the last President who, for all his other faults, still treated the office as though it was more important than he was.

[MichaelJoeWilliamson]

According the analysis I posted, intrasession appts, which is what Obama did, are common. That's how John Bolton was appointed, for example.

Simply not true.

[DaveFla]

IOW,

Bush: "I don't agree with these constitutional restraints placed on recess appointments during pro-forma sessions of congress, but I will abide by them..."

Obama: "screw the constitution! I will do whatever I damn we'll please! I AM The King of America, after all..."

[g8rjd]

IOW,

Bush: "I don't agree with these constitutional restraints placed on recess appointments during pro-forma sessions of congress, but I will abide by them..."

Obama: "screw the constitution! I will do whatever I damn we'll please! I AM The King of America, after all..."

Some could argue the reverse of those points when it comes to domestic spying in citizens, the use of torture in interrogations, and extraordinary rendition.

Nevertheless, the oversimplification is a bit hyperbolic in light of the facts that (1) this has been an open question for some time, and the action was supported by an Office of Legal Counsel opnion (just like the one John Yoo wrote on the Bush Administration torture policy and lack of habeas availablity for extraordinary rendition...which the Supreme Court rejected), (2) the DC Circuit's opinion conflicts with numerous other decisions of other Circuits, and (3) the DC Circuit opinion actually goes far beyond any other opinion to ever address the question, finding that only vacancies that happen during the intersession recess may be filled by the vacancy appointment power, as no court has ever held that before and it is contrary to 150 years of practice.

[RealDeal]

barack is not happy with this judge and will probably slam him during the state of the union speech again.

[Gatormb]

Affects me personally as the liberal head of the consumer protection board was also appointed. If he is successful (as proposed) in establishing flat fee mortgage originations it will be the death of small mortgage businesses and dry up originations for mortgages $100k and less.

In effect it would be like telling a Realtor he must earn the same commission whether the sale is $100,000 or $5,000,000.

[MichaelJoeWilliamson]

Some could argue the reverse of those points when it comes to domestic spying in citizens, the use of torture in interrogations, and extraordinary rendition.


I agree with all that.

Obama originally ran on stopping all that. It was one of the few campaign promises he made with which I agreed.

Sadly, he not only continues with these Bush policies, he has gone even further.

[g8rjd]

For those who are interested in this issue, the United States filed a certiorari petition this week with the Supreme Court. It is available here:

http://sblog.s3.amazonaws.com/wp-content/uploads/2013/04/NLRBvNoelCanningPet.pdf

[g8rjd]

And for those who are curious, I think that the prospect of a grant is very high here. If for nothing else, for two reasons: (1) This is a basic Presidential power that needs to be clearly known or will put any number of appointments in question; and (2) the clear conflict on this power between the D.C. Circuit and three other circuits, two of which decided their cases en banc (through the whole court, or a VERY large panel of judges in the 9th circuit).

[altalias]

Shocking that this thread turned into a political catfight.
The pubs said they were in session, Obama rolled the dice on it and lost, even a session solely designed to prevent what he did is a session. Unless the SC overturns it, the legislative branch wins a small victory over the executive, which isn't a bad thing given the expansion of executive orders, decisions on sending to troops to "war" etc. It creates more dysfunction in the short term, but longer term it's a good thing in my mind.

That was an intelligent well thought out post. I don't think they do that here. Perhaps you were looking for a different board? :wink:

[MichiGator2002]

And for those who are curious, I think that the prospect of a grant is very high here. If for nothing else, for two reasons: (1) This is a basic Presidential power that needs to be clearly known or will put any number of appointments in question; and (2) the clear conflict on this power between the D.C. Circuit and three other circuits, two of which decided their cases en banc (through the whole court, or a VERY large panel of judges in the 9th circuit).

I think there being a grant makes sense. I can't conceive of the Court, though, deeming that it is up to the executive to determine the legitimacy of a session of Congress solely so he can use a power that is ancillary to one expressed to Congress (i.e. recess appointment is, by its nature, subordinate to the role of the Congress).

[dadx4]

I told you guys BO couldn't do it.

[dadx4]

Obama made the recess appointments because the Republicans blocked all appointments for two years and made the NLRB completely worthless.

So you are saying that the constitution means nothing to you?

[reformedgator]

we the people are responsible for the elected representatives we elect

until we as a whole are sick of the dysfunction in Washington, nothing will get done

but that won't be anytime soon as Obama is considered the Anti-Christ by his opponents and the ones who elect them....so dysfunction is not punished

We're punished every day by the dysfunctional leadership of the one who occupies Pennsylvania Ave.

[g8orbill]

Obama made the recess appointments because the Republicans blocked all appointments for two years and made the NLRB completely worthless.

the NLRB is still completely worthless

[fredsanford]

And we just saw what the pub blocking of the director of ATF wrought.

[MichiGator2002]

And we just saw what the pub blocking of the director of ATF wrought.

What would that be? Surely you aren't so ridiculous as to think that had any relevance whatsoever to the Marathon bombing.

[OB1]

And we just saw what the pub blocking of the director of ATF wrought.

Are you saying the bombers in Boston would have been stopped with this appointment? That's quite a stretch, BO's administration couldn't even figure it out after being clued in by the Russians, not once, but twice.

Sorry that's a total failure in connect the dots, something BO is proving very poor at. He should get back to campaigning, playing politics is his game, unfortunately all he wants to do is play president. He's not interested in working hard and being a leader.

It's Great to be a Florida Gator!

[Gatorrick22]

Obama made the recess appointments because the Republicans blocked all appointments for two years and made the NLRB completely worthless.

The NLRB is worthless and nothing more than strong armed (with pens and lawyers) thugs for unions.

The NLRB's attempt to Block Boeing from opening up a plant in South Carolina proves my point.

[g8rjd]

The Third Circuit issued a 2-1 opinion joining the DC Circuit's interpretation of the Appointment Clause and invalidating the recess appointments to the NLRB. This furthers the split among the circuits and makes it even more likely that the Supreme Court will have to decide the issue.

http://www.volokh.com/wp-content/uploads/2013/05/Third-Circuit-2013.5.16-Decision-Vacating-NLRB-Decision.pdf

Edit: While I hate to make this observation, the majority is Bush appointees. The dissent is an Obama appointee.

[g8rjd]

Noel Canning filed his response brief in the SCOTUS today. While it is interesting, the most interesting part is that it does something that very few briefs do. Even though he won below, Canning agrees that the SCOTUS should accept the case. This is VERY rare. Typically, if you won below, you try to stop the SCOTUS from taking the case, so that you are guaranteed victory. Instead, Canning, unhappy with being victorious in the DC Circuit, wants to take his chances in the SCOTUS. This is certainly different from regular practice; its wisdom remains to be seen.

http://sblog.s3.amazonaws.com/wp-content/uploads/2013/05/Brief_of_Respondent_-_Noel_Canning.pdf

I will be curious to see if the Court appoints a cert stage amicus to argue they should not take the case. I imagine they probably won't, as they typically save that procedure for the merits.

[Gatorrick22]

the NLRB is still completely worthless

:laugh::laugh::laugh:

I know, right.

[g8rjd]

The Supreme Court will consider whether to take this case on June 20, 2013. If they decide to take the case that day (rather than hold it over), we will know either that afternoon or the morning of June 23, 2013. Obviously, if it is taken, it will be heard next term (since the term ends in June).

[g8rjd]

Assuming anyone besides me is interested, the Government's cert stage reply is here:

http://www.volokh.com/wp-content/uploads/2013/06/Noel-Canning-Cert-Reply.pdf