In Court’s Slap Down of Obama Overreach, ‘The’ Makes All the Difference
The D.C. Circuit Court of Appeals today invalidated one of President Obama’s most despotic overreaches to date: his attempt to use the Constitution’s recess appointment power to make appointments despite the absence of a recess. Judge David Sentelle’s opinion for the three-judge panel makes a powerful case for an originalist interpretation of the relevant clause (Art. II, Section 2, Clause 2).
The case involves our organized labor-loving president’s effort in January 2012 to stack the National Labor Relations Board with three members he obviously did not believe the Senate would confirm — another iteration of the Constitution-flouting ideology that led Obama to appoint numerous “czars” in an end-run of the Senate confirmation process. (At the same time he “recess-appointed” the three NLRB members, Obama also purported to appoint a left-wing chief of the constitutionally dubious Consumer Financial Protection Bureau — a Dodd-Frank monstrosity to which Republicans object. The CFPB “recess appointment” was not involved in the case decided today, but the court’s rationale surely spells doom for it as well.)
The problem for Obama was that the Senate was not in recess. To be sure, it was not doing much business at the time and was, in the main, only technically in session. Nonetheless, its official session had not come to an end.
As the court observed, the recess appointment power is a relic of our early history, when Congress would break for several months at a time and lawmakers could not hop on a flight back to Washington at the drop of a hat. It was meant as a “stopgap for times when the Senate was unable to provide advice and consent,” the Court reasoned, not as an exception that would swallow the rule of Senate confirmation. That rule, the Supreme Court has noted, was designed as a check against executive abuse of “the power of appointment to offices,” which was “one of the American revolutionary generation’s greatest grievances” against the British crown — “the most insidious and powerful weapon of eighteenth century despotism.”
Our juggernaughty Executive got slapped? Good thing a court did what a limp Congress can’t or won’t.
The Appeals Court decision was the first moment that I regained optimism that we were not doomed to a one party dictatorship. The Democrats are howling bloody murder, naturally, as they have been promoting a Leader and unchallenged executive power since the New Deal. I wrote about my fears of protofascism here: http://clarespark.com/2013/01/21/citizen-obama-political-pluralism-and-the-elusive-search-for-unity/. Only believers in “integral nationalism” will support Obama’s version of “We The People” and integral nationalism is notoriously protofascist.
Yet not one Republican Senator raised a fuss about these appointments ,WHY?
Why? Because they were as bad as Obama. They only cared about their own power to bully us, by raising a fuss they would become Obama’s target. They would rather “get along” to stay in “power” to enjoy the perks and wealth that their positions bring.
Rand Paul did
How would you know if they did or didn’t? Do you really expect the media in this country today to air any criticism of Obama, especially that which is well founded? Senators can howl bloody murder about Obama’s various abuses of power and almost nobody would hear about it.
Need I say it? Maybe the SCOTUS can figure out a way these are not “recess appointments” but “taxes”?
If not taxes, then the Commerce Clause.
I’d bet on the Supreme Court not taking the case.
If there’s an appeal, they may have to take it. The Circuits are split, which is when they are most likely to take a case.
Since there is a split the Court may need to take up the Obama appeal….but what a bad set of facts to appeal on…The opinion clearly points out that under the Obama theory, Obama or any President can circumvent the Advise and Consent Constitutional requirement just by making an appointment over any weekend, overnight, or even a lunch break.
There are some weak facts in this case from Obama’s stand point.
When you read the opinion the Court points out that what are called recess appointments were very, very, rare….before 1947. That was before modern transportation which means recess appointments are really not needed now, and were not what was included in the US Constitution when it was ratified.
Not exactly: The administration is in their rights to appeal. But SCOTUS does not have to hear the appeal. Rejection to hear the appeal is to affirm the lower courts decision.
What every session of the SCOTUS begins with is all the justices deciding on which cases they will hear. It is like 9 independent law firms trying to decide on what cases they think are important. This process takes time and they have already determined their slate for this session.
This said, I forgot the term, but either party in a case can summon the court to rule on a case at any time given the time constraints involved. Think the Gore/Bush election. Do not think this rises to that level of urgency, but with the dysfunction in DC now…
Anything is possible.
Question:
Will 0bama comply with the verdict or ignore it and continue with business as usual?
Where is the enforcement mechanism other than impeachment that would force him to comply?
Are the regulations passed by an unconstitutionally convened Board constitutional?
Will the parties regulated by the Board comply with the regulations or ignore them?
Can those unconstitutionally appointed members still draw a salary and pass more unenforceable regulations?
Constitutional perhaps, but not valid, and therefore void. Many congressional bills are constitutional, but they are not laws because they have not been validly passed into law, and most of them never will. Only those bills which are passed by both chambers and signed into law or passed over the President’s veto become valid laws.
You may recall a little incident wherein the NLRB sued Boeing over some fairly transparent labor thuggery. If they lack standing, they cannot sue anyone in the future. Any current lawsuits the have brought are dismissed. Their regulations, including those passed with a false quorum, become null, void, and unenforceable. If elections have consequences, so do lawsuits.
Lawsuits against him personally and hit him hard with them, keep him in court for the rest of his administration…he won;t have time to make any more executive orders just trying to defend himself!
Ezra Klein thought the Constitution was too old to understand. Maybe Ezra doesn’t know what “the” means?
You seem to have missed the equally, or perhaps MORE important, aspect of the ruling: That the recess appointment power really DOES only apply to vacancies which OCCUR during the recess. If the vacancy pre-existed the recess, the recess appointment power does not apply.
Between the two aspects of the ruling, recess appointments essentially cease being a factor outside of fairly unusual circumstances. Rarely do you see an executive power so thoroughly pruned back to it’s original scope.
It is high time that some court began to slap down all of the unconstituional acts this president has done. Perhaps, they see the writing on the wall that the electorate has no more patience with the overreach of congress or a president of their powers as written in our constitution. They keep pushing unconstituional laws on the states and public and they will find noone obeys them. Then I suppose they will have to either change or put the whole lot of us in prison.
That really seems to be the most important part of the decision, although it goes a bit beyond the question that was before the court.
It has been common practice by Presidents of both parties to use the recess appointment to circumvent the Senate’s unwillingness to confirm a controversial appointment. Bush did it frequently, and Obama arrogantly extended the process. If that part of the decision is upheld, only a vacancy that “happens” during a Recess will be eligible to be filled by a recess appointment. If the vacancy occurs prior to the Recess, the tactic is not available.
Judge Sentelle described how George Washington adopted the tactic of submitting an appointment to the Senate for someone whom he knew would not accept or serve. When the Recess occurred, that person declined, and he could then appoint another recess appointee. Obama will probably try that trick next.
Bush never went as far as Obama. Harry Reid is the Leftist who came up with the tactic of the Senate never being in recess and by his actions, Bush was blocked from making recess appointments. The GOP applied the same Reid tactic used by Reid in the past but Obama scoffed at that and went about his way making appointments. What was so in our faces about the NLRB appointments was these candidates were never brought forward for confirmation, O went straight to the trick playbook.
Hats off to Mark Levin and his Landmark Legal Foundation, Landmark was the driver behind this case.
Mr. McCarthy, thank you for an excellent piece explaining the ruling.
I never want to hear from the Left anything about an activist court. After the ObamaCare ruling, there is no such thing as a conservative court under CJ Roberts. I do not trust SCOTUS to uphold this.
I am pretty much in agreement with Indy regarding the specifics between Obama’s use of the power compared with Bush II’s use. But, I have to say that I am glad to see that this applies to both sides with equal force. I think that for too long we’ve allowed both Democratic and Republican presidents to gather too much power to their office, beginning in the 20th century.
Larry, I agree wtih you, there have been abuses by both sides but as usual, our current POTUS takes it to a whole new level. If you have not had a chance to listen to the explanation Mark Levin provided in my other comment below, it explains clearly what happened.
Our current President, i.e. Executive Branch, defined “a recess” for the Legislative Branch – another historic first for Dear Leader. A fifth grade civics book even in our government run education still says the branches are “co-equal”
The Recess is the key term and it is the Senate who defines the rules for the way it operates, not the Executive Branch. The media will spin this as a win for the right but the truth is this was a win for Our Constitution and Our frail Republic.
by carefully reading the Constitution
If only they’d do that more often.
YEAH BABY!!
Why didn’t the GOP Senators complain?
If they can’t take the time, or be bothered to read the legislation that they’re voting on, how can we expect them to extend themselves by actually reading, and pray-tell understand, The Constitution.
Oh, the Humanity!
I notice nobody else mentioned it, so oh hell, I will….
This line: “As the court observed, the recess appointment power is a relic of our early history…”
…made me laugh out LOUD!
George W. Bush used this “relic” of a tactic 171 times. WAY back in the last decade. Laugher!
And he was wrong too. What’s your point?
Can you name a president of either party who hasn’t tried or in fact did abuse the recess appointment power?
The checks and balances of the separation of powers clearly and precisely states, that the legislative branch (Senate) is mandated to approve departmental appointments. So, whenever and by whomever, the person(s), who came up with any exceptions to this legislative check and balance mandate over the exectutive branch, was grossly negligent of their constitutional duties.
Can you name a president of either party who hasn’t tried or in fact did abuse ANY power?
This was foreseen by the Founders and they expected the other branches of government to defend their own powers against one another. They failed to anticipate the day when the one thing politicians fear more than not having power would be having to take responsibility. So when th little god-king demands the Congress cede power to him, they’re already conditioned to go along.
Besides, carrying out al those constitutional duties takes time away from the fund-raising and the lobbyist-shmoozing, where the real “work” of D.C. is done.
The Senate has a mandate to approve, huh? The Senate has a duty to advise and consent. While many times it is a rummer stamp, they are required to go through the process. Harry Reid crafted and executed the strategy to never be in recess in order to block Bush from making recess appointments and it worked, he was stopped in his tracks from making further recess appointments (I believe this was put in place after John Bolton’s recess appointment but I haven’t done my homework to validate this). What Obama did was to take it a step further and boldly ignore the rules of a co-equal branch of government to say they were in recess and then made his appointments.
Listen to the explanation by Levin (link in my other comment #19), even if you disagree with Levin, the courts agreed, it was Landmark Legal Foundation who won this case so he knows what he is talking about with direct knowledge of the case, the law and the Constitution. For those willing to learn, the 9 minutes of audio is worth the click, and it you want to listen to the full podcast, you can go to his website and download it as I’m sure there were other points made throughout the show.
Feel free to read the checks and balances of the Separation of Powers for yourself. I just reproduced it with the words “approve departmental appointments” verbatim. On the other hand, I’m quite familiar with the terms advise and consent” which you refer to. I think the process mechanics has, historically and today, been far more near to what I printed than is advise and consent. Likewise, no high profile department head, agency head or supreme court appointments have ever been made using the recess appointment process.
Key words – the Senate was not in recess at the time of the appointments. Secondly, if the Senate had to rubber stamp appointments like you suggest,POTUS could appoint Bernie Madoff and the Senate is supposed to say okey dokey, really?
“A three judge federal appeals court panel today adopted arguments advanced by Landmark Legal Foundation to overturn appointments made by President Obama to the National Labor Relations Board (NLRB) under the Constitution’s Recess Appointments Clause.
The three judge panel from the U.S. Court of Appeals for the District of Columbia Circuit sided with Noel Canning, a Yakima, Washington, bottling company affiliated with the Pepsi-Cola Company, in deciding that three appointments to the five-member NLRB by President Obama made on January 4, 2012, under the Constitution’s Recess Appointments Clause (Article II, Section 2, Clause 3), were not valid because the Senate was not in recess at the time the appointments were announced. Landmark Legal Foundation filed an amicus curiae (“friend of the court”) brief in conjunction with the National Right to Work Legal Defense Foundation in support of Noel Canning.
Landmark was the only organization in the case to advance the argument that the President could not use the Recess Appointments Clause because, according to the specific language in the Constitution, the Recess Appointments Clause could only be used by a President in between sessions of Congress, and not during brief recesses taken by the Senate during a session of Congress. The Court agreed with Landmark that to interpret the clause as the President had would be to effectively destroy the Senate’s constitutional authority to confirm presidential appointments.”
http://www.landmarklegal.org/DesktopDefault.aspx
“Key words – the Senate was not in recess at the time of the appointments. Secondly, if the Senate had to rubber stamp appointments like you suggest,POTUS could appoint Bernie Madoff and the Senate is supposed to say okey dokey, really?”
Where did I ever say that the senate was or wan’t in session? Where did I ever say or suggest that the senate “rubber-stamp” anything? I have really never suggested anything more than most presidents try to mess with recess appointments and that the langauage of the separations of powers checks and balances gives to the legislative branch (senate) to approve department all appointments of the executive branch. Thats all!
Ron Roberts,
Because “Bush did it!”, does that mean the Court should step aside and allow the Executive to govern by regulation, rather than by law, unhindered by silly rules like “advise and consent”? Do we even need a Legislature in the Age of Obama?
Do we even need a Legislature in the Age of Obama?
He doesn’t think so, finds all that silly, slow deliberative stuff a drain on his brilliance.
Has expressed envy that government honchos in China can just do stuff at will.
Most congressional legislation provides a ‘framework” for which the directed Executive Branch department or agency who administers the legislation, provides the policy making and regulating thereof, all of which becomes attached to the legislative enactment. On the other hand, congress will often take on a particular policy established by some legislative enactment to amend or repeal it. Most all domestic legislation and all its regulatory policies are the ‘direct result’ of private sector special interest groups initatives.
Susie (#7):
Would that the American electorate “has no more patience with the overreach of congress or a president of their powers as written in our constitution.” I see precious little evidence that this is the case. After all, the American electorate just gave this Stalin-wanna-be four more years to complete the destruction of our Constitution that he started four years ago.
(If) “they keep pushing unconstitutional laws on the states and public they will find no one obeys them.” Here again, I must disagree. I’ve seen no wholesale refusal to obey any laws passed by Obama’s party under his signature, even though their constitutionality is at best questionable. Half the states took him on over Obamacare which, despite the Chief Justice’s tortured logic, is clearly unconstitutional. Yet, here we are, lining up for the “Affordable Health Care” disaster.
Indeed, the only person I can remember refusing to follow a federal judge’s finding is Obama himself, as when he was ordered to lift his ban on oil drilling in the Gulf of Mexico.
I fear you give too much credit to the American people. The days when Americans would stand up to Imperial overreach are now just a faded memory. If the current generations now walking this land had been in place 230 years ago, we would still be bending our knees to the Court of St.James.
When the GOP re-elected Boehner as Speaker they preemptively decided never to impeach Obama, never to repeal ObamaCare, never to punish Eric Holder or Hillary Clinton, and perpetual surrender on taxes and spending. Your “army” can’t win battles if your commanding General has already decided surrender is the right course of action.
Name 2 things Boehner did well in the Obama first term? Having no accomplishments to speak of the GOP chose Boehner to lead them again. Until we understand the GOP won’t fight, chooses not to fight, will surrender before a fight, and will never listen to us out in the country we will delay taking over the party or replacing the party. Anyone with an excuse for inaction or reason for delay is helping Obama. An ineffective opposition is Obama’s best tool to accomplish his destruction of this country.
Just me, I feel the GOP didn’t re-elect JB, he got over with “New Era”/Tea party votes.
Yes, GWB should have vetoed lots of stuff, RINOs are sometimes just as corrupt as Dems, gravity still works downward, etc…. But when in legislative history has one party consistently hung zeroes or near zeroes on the board against a large opposing majority and the pork and blackmail power of the WH ?
Even RR was against going off the cliff with flags flying. Use the progs playbook against them. Every vote, every speech, every day it should be “Whats ours stays ours, whats yours is the battleground”. Could some aspects have been managed better? Sure. Is any party ever going to win every vote ? No. I expect a tougher approach from the new House, and I don’t think 0 has a solid working majority on many issues in the Senate now. Interesting times ahead. GBUSA
Nobody stepped up to challenge Boehner, a loss for America, the man is a coward and lacks the knowledge / ability to carry out principled arguments in a manner to communicate directly with voters the issues our country is facing. The problems lie in DC, the solutions will not come from there, they are all feeding at the trough.
This is an important decision if you support the US Constitution no matter who the President is and no matter who in in Congress. It is an opinion well worth reading.
For ONCE sophistry, obfuscation and logical contortions are rejected by the Court. Who says the age of miracles is past?
.
The emperor will figure out a way to circumvent this ruling. I have every faith in the divider in chief’s ability to ignore the courts and/or the Constitution. He has 3 years 9 and a half months +/- to grind his agenda over the top of the Constitution of The United States of America and it’s citizens.
From reading comments above, it appears many don’t understand how far Obama crossed the line compared to any POTUS, Bush never went this far. Listen to Mark Levin explain the background and the ruling. HT rightscoop
http://www.therightscoop.com/mark-levin-explains-why-the-court-ruled-against-the-obama-administration-on-recess-appointments/
This ruling was a win for the Constitution.
Hey thank you so much for taking the time and effort to put this
post together.. very appreciated
Spam alert.
I think we really need to take a look at what they teach at Harvard Law School. Laurence Tribe is the professor who designed the strategy for the Democrats filibustering George Bush’s judicial nominations. Imagine what the Democrats got away with (partially because of a compliant press) by filibustering Janice Rogers Brown and Miguel Estrada, a black woman and a Hispanic judge. Of course they weren’t the only ones, but had they been Democrat appointments the charges of prejudice would have been flying around the news for weeks.
The President, a graduate of Harvard law, has been circumventing the constitution since his inauguration so it’s quite obvious he not only believes in a living contitution, he believes he’s responsible for keeping it alive.
Agree. I have thought for quite a while that Harvard’s brand has been diminished (or illuminated) by Obama. You can be president of the law review and not show up very often and not write a darn thing. It appears you can get a degree from its law school and not understand the constitution.
The Court needs to go back in a week and ask why the unconstitutionally appointed personnel have not vacated their offices.
Rest assured that the new aristocracy has thousands of lawyers dedicating their lives to scouring the Constitution, existing laws and precedents for every conceivable scheme and con to increase their power, control, wealth and tyranny. Thy aren’t sitting around dreaming up ways to make your life better. If they enact something that does, there is an ulterior motive behind it.
It’s what criminal minds do. Flimsy words are not going to stop them any more than the Atlantic ocean stopped George III. Ever.
It’s just about time to tell Hussein O and his tyrannical clique, that USA is not a banana republic yet. One way or other the American people will not let him be a dictator. He is the personification of what the founding fathers were afraid of. Give them credits, they anticipated the future because the studied the past. They were much smarter and wiser than all the current Harvard thugs put together.
Actually, I think you meant Art. II, Sec. 2, Cl. 3 (not Cl. 2). Here is the text of that clause: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Please take note that clause only allows the President to unilaterally “fill up all Vacancies that MAY HAPPEN DURING THE RECESS . . . .” Thus, the actual text of the clause requires that the vacancy arise “DURING” the recess. However, the Supreme Court has interpreted this clause to mean any vacancy that exists whether or not it arose during the recess. But as the glorious Hillary Clinton would say, “What diffence does it make?”
Re: #21 & #23
That is exactly why they study the constitution. I get so tired of hearing the right exclaiming how they were blindsided by the left’s illegal and constitutionally hostile moves and motives. They so often utter how Obama or some other thug on the left should know better because they are constitutional scholars. Are they really that stupid? (Rhetorical Q)
And by the way, “transformation” into what, exactly? “Forward” to where exactly? Why are they are always hiding their motives/intentions (if they’re so wonderful)? Why does no one ever ask these questions? Why do they allow these abuses? Abuse of power is a human condition, but we are now living in a banana republic where there are no longer any consequences for wrong doing…unless of course you’re just John Q. Public. Lying to congress, for example. Or bringing and illegal gun clip for a tv show. All okay, if you’re not just a normal unknown citizen, then the book is thrown at you. Law and order? Constitution? Obamacare? Laws are just for the little people.
Rant over and out, LOL. So difficult not to go off with admin. So much is wrong! “It’s all wrong!” (From the movie Asteroid.)
21. bflat879
“I think we really need to take a look at what they teach at Harvard Law School. …”
23. weo
“Rest assured that the new aristocracy has thousands of lawyers dedicating their lives to scouring the Constitution, existing laws and precedents for every conceivable scheme and con to increase their power, control, wealth and tyranny. Thy aren’t sitting around dreaming up ways to make your life better. If they enact something that does, there is an ulterior motive behind it.
It’s what criminal minds do. Flimsy words are not going to stop them any more than the Atlantic ocean stopped George III. Ever.”
And hussein says: “Bite me. Ya’ll don’t understand. I do what I want regartless of what you say.”
In a Bloomberg article 1-26-13 quoting German Chancellor Merkel’s statement in observing International Holocaust day that Germany has “everlasting responsibility for the crimes of National Socialism, for the victims of World War II and, above all, for the Holocaust.”
What does that have to do with this slapdown of the Executive fiats of President Obama? The article also noted:
“Exactly 80 years earlier, Hitler, leader of the National Socialist German Workers’ Party, was sworn in as chancellor by President Paul von Hindenburg. Two months later, a so-called Enabling Act allowed Hitler’s government to pass laws without parliamentary control and in violation of the constitution, paving the way for his dictatorship.”
History must not be repeated because we failed to resist illegal power grabs by the Executive office of government.
Remember that the Enabling Act was preceded by the Reichtagsbrand (Burning of the Reichstag) on 27 Feb 1933. Chancellor Hitler used the fire as an excuse to urge President Paul von Hindenburg to arrest the Communist members of the German Parliament. With the arrested delegates unable to vote, the Enabling Act was passed on 23 March 1933. There were show trials of alleged Commintern agents.
“What difference does it make?” He did it. Nothing will happen. Pharaoh does what he wants.
OBAMA´S VIOLATIONS OF OUR CONSTITUTION
Obama´s first term in office has made our Constitution and Congress irrelevant. It is quite clear that during his second presidential term, Obama will act in a more … READ MORE: http://bwcentral.org/2013/01/obama´s-violations-of-our-constitution/
What will it take now for all decisions of this illegal NLRB to be rescinded?
So what? So now, he just waits until they recess every year, and picks who he wants. Constitution be damned, the congress be damned (it’s not like he doesn’t control them all, Republicans and Democrats alike), but mostly, the people be damned. I’m betting he’ll be the first three-term president since Roosevelt. If he still calls it president.