January 25, 2013

"President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel..."

"... a federal appeals court panel ruled Friday."
The unanimous decision is an embarrassing setback for the president, who made the appointments after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions....

Obama claims he acted properly in the case of the NLRB appointments because the Senate was away for the holidays on a 20-day recess. But the three-judge panel ruled that the Senate technically stayed in session when it was gaveled in and out every few days for so-called “pro forma” sessions.

GOP lawmakers used the tactic — as Democrats have in the past as well — to specifically to prevent the president from using his recess power....
The Supreme Court is likely to take this case, which, if it is not reversed, will invalidate all the decisions the NLRB has made going back more than a year and that going forward, there is no quorum for it to decide any cases. 

89 comments:

Rob said...

Did the President act unconstitutionally? What difference, at this point, does it make?

Jay said...

will invalidate all the decisions the NLRB has made going back more than a year

Good.

America doesn't need an NLBR, nor does it need a consumer safety comission, or any of these other bullshit, unaccountable boards.

Big Mike said...

... there is no quorum for it to decide any cases.

You mean that in order to get people on the NLRB Obama may actually have compromise??? Gasp!

Seeing Red said...

And DEMOCRAT senator Menendez went to the Philippines for under-age prostitutes.

Interesting that the admin delays that FBI tidbit to get him re-elected and when was Petraus' affair outed again?

What difference, at this point, does it make?

Chef said...

Wouldn't the logic from this opinion also apply to Rob Cordray's appointment to the Consumer Financial Protection Bureau?

Maybe no one's challenged it yet, but that would seem to invalidate all of that agency's actions since his appointment as well.

AustinRoth said...

Does the language of the ruling expand beyond the NLRB appointments?

It sure seems to, and as such would that not mean that all such appointments, of any type and for all vacancies done outside of appointments done when Congress is adjourned sine die, are equally invalid?

If that is held to be true, what then of all rules, regulations and judgements conferred by such appointees? How far back would it extend?

This sounds like they got the law right to me, but given the severe ramifications of actually following the Constitution on this issue, another "Roberts Special" SCOTUS ruling ala the Affordable Health Care ruling to maintain the status qou, and to ensure Roberts continues to get invited to the 'cool kids' Georgetown parties, is likely to coming down the pike.

SteveR said...

Seems rather obvious but what difference, at this point, does it make?

Petunia said...

Good. As Jay said we don't need a NLRB any more.

Petunia said...

And 0bama needs to be held accountable for his unconstitutional actions.

FleetUSA said...

Isn't the point of all of this is that a President must appoint middle of the road people generally acceptable to both sides OR appoint one from each side.

Isn't this how it has been done for decades before?

Appointments to critical agencies should allow vetting to disallow the outliers.

Jay said...

Canning v. NLRB - D.C. Ct. of Appeals Decision 1-25-2013

Link

President-Mom-Jeans said...

Looks like the Unions made a pretty poor investment in King Putt. All that money down the drain, and barely any goodies since the Porkulus.

And didn't we just see the other day that union membership is declining at an even faster rate under President Foodstamps than under Bush?

Womp womp.

james conrad said...

The real problem with all this is, Obama has succeeded in creating a bright line on this issue which will bind future presidents appointments.

Nathan said...

Thanks for the link, Jay.

Marbury AND Youngstown Sheet & Steel both cited? Be still my beating heart.

Jay said...

From the Washington Post:

Union membership plummeted last year to the lowest level since the 1930s as cash-strapped state and local governments shed workers and unions had difficulty organizing new members in the private sector despite signs of an improving economy.

Government figures released Wednesday showed union membership declined from 11.8 percent to 11.3 percent of the workforce, another blow to a labor movement already stretched thin by battles in Wisconsin, Indiana, Michigan and other states to curb bargaining rights and weaken union clout.


Note the picture of that fat Commie Trumka, he kind of looks like Hitler there.

Kensington said...

But but HE WON!!!

THEY CAN'T DO THIS TO THE DEMOCRATS'S REAGAN!!!

YoungHegelian said...
This comment has been removed by the author.
MadisonMan said...

Mick Bait.

Robert Cook said...

Can't they rule he has violated the Constitution with his asserted-and-acted-upon "right" to detain and/or kill anyone in the world--including Americans--without due process of law? This would seem a more serious breach, is, in fact a grave crime, and more in need of immediate remedy.

traditionalguy said...

What difference at this point does it make? Messiah Obama has spoken!

Since John Roberts finds taxation power to avoid politics when it comes to Congressional tyranny, I bet he can find Imperial power to avoid politics when it comes to Presidential tyranny.

And if not, then in a year or so the next 2 Obama Court appointees will certainly find it there all along.

X said...

good riddance to Richard "Dick" Cordray over at CFPB too.

YoungHegelian said...

The Obama administration is finding out the hard way that American politics moves by consensus, and that things are set up in a way that stymies most attempts to ice out the opposition party.

Democrats may say that it's impossible to deal with such an extreme opposition as the present Republican Party. While I personally think that's hogwash, I'll grant them that assumption for argument's sake, and still say that politics is the art of the possible. The "extreme" Republicans represent "extreme" constituents, and they, too, have a right to have their interests represented.

Deal with whom you have to deal. To quote Super Chicken: "You knew the job was dangerous when you took it, Fred"

TMink said...

Occasionally I attempt to violate gravity with predictable consequences. Were that our Constitution were so robust.

Trey

McTriumph said...

What difference, at this point, does it make?

Obama=Wilson/Nixon

bpm4532 said...

There are a number of areas where the Obama administration overstepped its authority in the believe that if no one challenged it, they could get away with it and thus become a precedent essentially invalidating the law. The ones that are particularly unsettling is the withholding of information and pressuring of officials to influence the November elections. I look forward to a number of these things litigated or investigated by Congress in it's oversight capacity.

bagoh20 said...

Does anyone think that the smart guys in this administration ever consider whether they should violate the Constitution. You know damned well, because it's obvious, that all they ever ask is can we do it and get away with it. Someone immediately chimes in and supplies the chronic "The Press will behave", and the plan put in motion.

And that we call "progress", "courageous", "muscular", "moderate", and "dreamy".

chickelit said...

That's one small misstep for a man, one giant flop forward for his kind.

Drago said...

Cookie: "Can't they rule he has violated the Constitution with his asserted-and-acted-upon "right" to detain and/or kill anyone in the world--including Americans--without due process of law?"

We have been non too subtly informed over the past 6 years that disagreeing with obama is racist.

So the court(s) could rule in the way you described, but only at the cost of their public image which many judges are loath to do.

bagoh20 said...

If Republican opposition didn't exist, the administration and the Press would invent it anyway. Otherwise people would notice something isn't right.

Aridog said...

The NLRB ruling goes to the Supreme Court. Supreme Court rules 5-4 to reverse the lower court. Chief Justice "Wobbly Knees" Roberts writes in his opinion to overturn that "recess" is commonly known from kindergarten onward as time spent away from work, thus the Senate was in recess. His final opinion line of text is "at this point, what difference does it make!"

bgates said...

Does anyone think that the smart guys in this administration ever consider whether they should violate the Constitution.

Sort of. I imagine from time to time they'll say something like "we could do it that way, but there's an alternative which has the additional advantage of violating the Constitution."

Elliott A said...

The Obama administration functions with the "just do it and apologize later" credo. Although they substitute obfuscate, ignore or equivocate for apologize.

As for those panning Chief Justice Roberts, give the ruling time. The inability to charge a "penalty" that is significant, coupled with the way most people operate will leave millions to avoid insurance purchase until sick. The insurance companies will be stuck with rocketing costs. The multitude of other provisions in the ACA coupled with the insurance industry problems will lead to implosion. Since the Dems created the mess, they will have no public sympathy for any possible solution. This will all be hitting the fan by Fall 2016. Stay tuned.

traditionalguy said...

The perishing of Justice from the earth is accelerating as Americans submit to the The Lawless One's illusion that his one man tyranny is a good way to live.

That is the point of Hillary's phrase, "what difference does it make now."



edutcher said...

One more article of impeachment, right?

PS and OT: Nice Drudge right now.

If there were a caption contest, I'd say, "The fly knows it when it smells it".

Original Mike said...

The appeals court must be mistaken. Don't they know Obama is a constitutional law pseudo-professor?

traditionalguy said...

Obama is using a monopoly on Health Care power the same way he is using drones.And he is no one's friend.

jr565 said...

If the constitution is living and breathing how can you violate it? It means exactly what you want it to mean.

Te only time you'll find libs concerned with violations of the constitution is when repubs do it. When Obama does it, there's nothing to see, move on.
Have ou not figured out the game yet?

Seeing Red said...

Except, Elliott, it could go the other way and whoosh, nationalize health care immediately.

the federal government and ASFME excepted of course.

Can cartoonists now draw them with crowns on their heads?

bagoh20 said...

" Since the Dems created the mess, they will have no public sympathy for any possible solution."

Despite the logic of it, almost nothing moves in the direction of from public to private, so the answer after the collapse will then be as designed - a single-payer, top-down system. It will suck even worse than the collapsed system, and be even less sustainable, but our people seem incapable of supporting private enterprise politically despite loving it in their personal lives when they are spending their own money. It's a blind spot obstructed by the class warfare silliness that has been behind most of our bad national decisions for decades.

President-Mom-Jeans said...

"Obama is no ones friend. If he was an ice cream flavor, he'd be pralines and dick."

Garth Algar

The Drill SGT said...

Althouse, isn't that wroing? Obama claims he acted properly in the case of the NLRB appointments because the Senate was away for the holidays on a 20-day recess. But the three-judge panel ruled that the Senate technically stayed in session when it was gaveled in and out every few days for so-called “pro forma” sessions.

GOP lawmakers used the tactic — as Democrats have in the past as well — to specifically to prevent the president from using his recess power....


It wan't a GOP tactic, it was a Senate tactic. Harry Reid was the leader. The GOP might have been blocking confirmation, and they were, but it was Reid, or likely the joint leadership that decided to protect their long term rights from any President, thus they ordered 'pro forma' sessions...

Seeing Red said...

Was there a manditory date he had to appoint someone by? He couldn't wait?

Baron Zemo said...

Robert Cook said...
Can't they rule he has violated the Constitution with his asserted-and-acted-upon "right" to detain and/or kill anyone in the world--including Americans--without due process of law? This would seem a more serious breach, is, in fact a grave crime, and more in need of immediate remedy


This is absolutely right. Obama obviously has no regard for our Constitution. He continually tries to bypass the role of Congress and the Judiciary with executive orders and regulations by unelected boards and commissions.

I am old enought to remember Nixon and the "Imperial" presidency. When the Democrats in Congress went ape shit at limiting what a President could do with Congressional oversight and input and legislation. The War Powers Act springs to mind. What happened to that idea?

Schumer....Pelosi...Ried...Buellar?

SomeoneHasToSayIt said...

Woot!

President-Mom-Jeans said...

Where are all the usual suspects to come and defend poor little Oblamebush for the mean federal courts taking him over their knee and spanking him?

Come on Garage, let's hear how its so unfair that the seperation of powers and checks and balances are enforced at the expense of a Union powergrab?

Paul said...

About time. 'Drone killer' Obama has got to be shown he isn't no king or dictator.

Sure it will go to SCOTUS, but I bet they say the same thing. 'Recess' means recess just like the 2nd Amendment says 'the rights of the PEOPLE'. and not state or federal or militia.

It's plain English folks and not some word game.

Lem said...

What difference, at this po...

It makes a ton of difference that someone else was first.

Thats what.

Marshal said...

President-Mom-Jeans said...
Come on Garage,


You know the left never addresses any of the limitations or drawbacks of their preferences. So why bait him when there's nothing interesting he will offer? He's exactly where he's most wanted: somewhere else.

Revenant said...

This doesn't seem like a surprising ruling. The court normally defers to Congress when it comes to Congressional rules, doesn't it?

If Congress said it was in session, the courts are going to accept that.

Bob_R said...

Do away with the Wagner Act and be done with it.

Revenant said...

Can't they rule he has violated the Constitution with his asserted-and-acted-upon "right" to detain and/or kill anyone in the world--including Americans--without due process of law?

Well, not in a case about the NLRB, no.

Someone would have to file a suit to stop them from doing it. Hint, hint.

Bryan C said...

Unconstitutional appointments made by an executive's fiat decision to arbitrarily override a co-equal branch of the elected government?

Gosh! How embarassing!

McTriumph said...

The Obama administration and the Dems brag in the press about "end runs around" congress, WTF. The America experiment is over.

Balfegor said...

On the one hand, I like the reasoning of the case. The result is amusing. But it's also a bit scary. Invalidation of the current crop of recess appointees' decisions is one thing. But there have been recess appointees appointed during intrasessions recesses in the past. How do we tease out what rules/regulations will fall there? And how about opinions by recess-appointed judges? Do they lose all precedential value?

The court held:

A vacancy happens, or “come[s]
to pass,” only when it first arises, demonstrating that the Recess Appointments Clause requires that the relevant vacancy arise during the recess
.

This potentially opens the door to challenging a lot more administrative rulemakings, doesn't it?

All changed, changed utterly:
A terrible beauty is born
.

Forthenri said...

This should not be viewed as a limit on a democrat president's power. It's a limit on any president's power. I certainly wouldn't want a republican president to be able to decide when Congress is in recess any more than I would want a democrat president to have that power. Too many liberals seem to overlook the danger of the expansion of presidential power by Obama: there will be another republican president someday who then can use the same, expanded powers. Well, there will be unless Obama destroys the republican party once and for all.

Bryan C said...

"The real problem with all this is, Obama has succeeded in creating a bright line on this issue which will bind future presidents appointments."

That's a problem?

It seems like there was a pretty bright line there all along. None of our previous Presidents had any trouble seeing it.

Franklin said...

Buncha racist federal judges is what this is. And a racist Constitution. And racist media for reporting on this.

I was hoping that Amerikkka could move past the days of the ol' Confederacy but apparently not.

cubanbob said...

Good. As Jay said we don't need a NLRB any more.


And the Wagner and Davis-Bacon Acts.

YoungHegelian said...

Can anyone answer an historical/legal question for me?

The DC US Court of Appeals (three judges) ruled unanimously against the administration.

Has the Supreme Court 1) taken on a case that a lower Federal Court has ruled on unanimously & 2) overturned a unanimous ruling anytime, let's say, the last 50 years?

Noz pkr said...

Elliott Ness says "no" to Chicago mob rule.

JAL said...

Wouldn't the logic from this opinion also apply to Rob Cordray's appointment to the Consumer Financial Protection Bureau?

Yup.

Anyone remember if the Boeing mess was done after this? (Where the NLRB ruled that Boeing could not move / build[?]a plant in SC [a RTW state])?

And why did the lone Republican quit? There's some story there.

Who appointed these judges? Missing in the article I read.

Marshal said...

Forthenri said...
Too many liberals seem to overlook the danger of the expansion of presidential power by Obama: there will be another republican president someday who then can use the same, expanded powers.


I don't think the left worries about this. Presidential powers are filtered through the various federal agencies where virtually all of the management is one version of lefty or another. They count on the bureaucracy allying with the media and Democrats in congress to block the policies they are most against. Since Republicans can't do the same it's a good trade for them.

Rocketeer said...

This potentially opens the door to challenging a lot more administrative rulemakings, doesn't it?

That would seem to be a feature, not a bug.

Simon said...

I'm delighted by this. I wrote at great length about this issue back in 2010, and the court has today adopted almost exactly the result that I had urged.

Balfegor said...

Re: Rocketeer

That would seem to be a feature, not a bug.

Well, since I'm on the defense side in my day job, yes, I guess, it's helpful. But the degree of regulatory uncertainty is considerable. Would hate to be an ordinary corporate counsellor trying to navigate this issue. To illustrate -- Bush II made 141 intrassession appointments. Most of those are to offices like General Counsel of this or Assistant Administrator of that. But I count at least 13 positions in which the intrassession "recess" appointee was in a position to make binding administrative regulations or issue binding judgments --

FEC (2)
EEOC
ITC (2)
11th Circuit
FTC (2)
NRC (2)
NLRB (3)

If one of them is a deciding vote (or needed for a quorum, if required by law) what happens to the law? Just tracing everything back would be a major headache. And there's a circuit split too.

Clyde said...

This is just a case where Obama was actually called out on violating the Constitution. There have been numerous other violations where he's gotten away with it.

Simon said...

YoungHegelian said...
"Has the Supreme Court 1) taken on a case that a lower Federal Court has ruled on unanimously & 2) overturned a unanimous ruling anytime, let's say, the last 50 years?

All the time. It could hardly more a more common occurrence. The last time it happened was last Tuesday—Sebelius v. Auburn Regional Medical Center, which reversed another unanimous decision of the DC Circuit.

Methadras said...

I'm shocked, shocked, that it makes any difference, at this point.

Lem said...

I'm delighted that somebody seems willing to (in effect) say to president Obama... We realise how important your moment in the sun is to you, but you are still going to be required to be president and not a fucking King.

Simon said...

Lem said...
"I'm delighted that somebody seems willing to (in effect) say to president Obama... We realise how important your moment in the sun is to you, but you are still going to be required to be president and not a fucking King."

This is not about Obama. When I started criticizing recess appointments, it was President Bush who was abusing it. You know why he got away with it? Because Clinton had abused it. Why did Clinton get away with it? Because Reagan got away with it. This abuse has been common—for years. That is what makes it so astonishing that the DC Circuit got past the inertia and got it right.

Lem said...

Drudge has linked to a terrific article by David Mamet on Obama, the Constitution and self protection.

YoungHegelian said...

@Simon,

Thank you for your answer. I appreciate a good, straightforward answer to a question every now & then.

Lem said...

I seem to remember discussing with you something Mark Levin had said that prompted me to ask you.

I believe it was about the recess appointment power.
Wasn't it?

I believe Mark Levin was equating it to an impeachable offence.

Aridog said...

Again, your non-lawyer putz here...this decision seems to me to be more about pro-forma sessions versus intra-session recesses.

1. How many previous recess appointments have occurred while the Senate was in declared pro-forma session?

2. What law or Constitutional article supports the concept of pro-forma sessions? Especially as they occur intra-session?

3. As a ordinary stiff, it seems illogical to allow any recess appointment intra-session...by definition.

As you were, carry on...

Bruce Hayden said...

The basic problem here is that the way that recess appointments were being used, and, in particular, by Obama, essentially eviscerated the power of the Senate to Advise and Consent. The President would just wait for a recess, and then appoint whomever he wanted, bypassing Senate confirmation. Sure, they could only serve until the next session, and not until the next Presidential election, but BFD - he could just reappoint during the next "recess".

The way that I think Obama stretched this even more than in the past was that he declared the Senate to be in recess, when they had determined just the opposite, and then made appointments. If nothing else, the determination of when the Senate is in recess should be a Senate prerogative, and not a Presidential one.

Should be an interesting case - there should be 4 liberal Justices voting for Cert if this decision stands, and 4 conservative Justices voting for Cert. if the Court en banc reverses.

My vote is that this decision gets at least 5 votes in the Supreme Court. The resulting problem was a self-inflicted by the President trying to bypass Senate confirmation of these nominees. All he needed to have done was run the nominations through the Senate, as his 43 predecessors mostly had done. I think that the blatancy of the actions is what is going to get 5 or 6 votes for sustaining this decision.

Aridog said...

Simon @ 3:22PM ... on the chance you have already answered my questions in your *pdf* linked, I have downloaded all 23 pages to red later. Thanks for the link.

Uncle Pavian said...

As it is said, "Mr. Marshall has made his decision. Now let him enforce it."

wildswan said...

"he declared the Senate to be in recess, when they had determined just the opposite, and then made appointments."

Suppose the President did one of these executive orders"x is to happen". And then the House brought forward a bill that said exactly the same thing but it did not pass the House. Then wouldn't that invalidate the executive order? Because the President is to "faithfully execute the laws" but if an executive order could not get through Congress as a law then the President is not faithfully executing the law with his executive order because we know that order could not get through Congress as a law because we tried it.

TMink said...

My wife is in HR for a multi-state company. She sent me a copy of this article with a big hip hip hooray! She does not think well of the NLRB and was cackling with joy and shadenfreude.

Trey

harrogate said...

If this is upheld it sets the precedent for a Party to simply refuse to approve nominations to government agencies it doesn't like, effectively destroying their ability to function.

Don't let the door knob hit you on the way out, functioning Democracy!

Bruce Hayden said...

If this is upheld it sets the precedent for a Party to simply refuse to approve nominations to government agencies it doesn't like, effectively destroying their ability to function.

Let me suggest that this was addressed in the opinion, and the Court gave a couple of answers. First, Congress has shown itself able to draft laws for just this purpose, to appoint "acting" officers until a nominee can be confirmed for the position. That they did not do so for the NLRB is not justification for adjusting the separation of powers between the two branches, but rather, something that probably should be addressed with further legislation. And, other similar boards do have provisions in place that they could have legislatively included for the NLRB, but didn't. So, it isn't that they don't know how to do it, but rather, they just didn't.

And, secondly, executive efficiency is not a valid excuse for changing the separation of powers between the branches. The Advice and Consent power of the Senate was specifically included to check the power of the executive, and efficiency is not a valid reason for ignoring it. Indeed, our government could be a lot more efficient if those checks and balances could be ignored overall. But, the intent of the drafters of the Constitution was to limit power, not maximize efficiency.

Methadras said...

harrogate said...

If this is upheld it sets the precedent for a Party to simply refuse to approve nominations to government agencies it doesn't like, effectively destroying their ability to function.

Don't let the door knob hit you on the way out, functioning Democracy!


We aren't a democracy. We are a Constitutional Representative Republic. It's an odd thing to remember.

Glenn Howes said...

I am under the impression that the Senate was in pro forma session was because it cannot go into recess without the agreement of the House House as per the Constitution. Since nobody wants to stick around Washington, the bodies agreed to the pro forma. I'm pretty sure Harry Reid hasn't seen many Obama appointees he'd disagree with.

Revenant said...

If this is upheld it sets the precedent for a Party to simply refuse to approve nominations to government agencies it doesn't like, effectively destroying their ability to function.

My goodness, you mean the federal bureaucracy might do less than it current does?

What a pleasant thought with which to begin my weekend.

Balfegor said...

Re: harrogate:

If this is upheld it sets the precedent for a Party to simply refuse to approve nominations to government agencies it doesn't like, effectively destroying their ability to function.

Sure. Or they could just refuse to fund them. Congress is actually given a quite lot of power under the American Constitution. To check and balance the executive. If the executive doesn't want to compromise, he can pound sand.

ken in sc said...

You anti-Obama guys stop crowing. This thing ain't over yet. It's going to be a long march.

Eric said...

Does anyone think that the smart guys in this administration ever consider whether they should violate the Constitution. You know damned well, because it's obvious, that all they ever ask is can we do it and get away with it.

Because they know the press has become an arm of the Democratic party. As Glenn Reynolds is wont to say, if you want the press to play it's role in keeping the government in check you have to vote Republican.

Kirk Parker said...

Balfegor,

Maybe the whole damn regulatory apparatus will come crashing down around itself.

دردشة ومنتديات عراقنا said...

thanks
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