Obama Appointments Ruled Unconstitutional

[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]

Originally Posted by 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.

"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]

Originally Posted by rivergator

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]

Originally Posted by wgbgator

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]

Originally Posted by myamiG8R

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]

Originally Posted by ArtVandelay

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]

Originally Posted by 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.

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]

Originally Posted by rivergator

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]

Originally Posted by DaveFla

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

[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.