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D.C. Appeals Court rules Obama recess appointments unconstitutional

D.C. Appeals Court rules Obama recess appointments unconstitutional

Just breaking.  Via AP:

President Obama violated the Constitution when he bypassed the Senate to fill  vacancies on a labor relations panel, a federal appeals court panel ruled  Friday.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said  that Obama did not have the power to make three recess appointments last year to  the National Labor Relations Board.

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.

Update — I was hoping to have some time to go over the decision, but I don’t. So here’s some commentary by John Elwood at Volokh Conspiracy:

This is a very important and very broad holding–indeed, much broader than when it appeared that this case would be resolved on the President’s ability to make recess appointments when the Senate was conducting “pro forma” sessions.

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, so this is an important ruling as a practical matter.

But the court also held (or at least stated) that the recess appointment power may only be used to fill vacancies that arise during the recess of the Senate.

This decision has the potential to become the new Citizens United to the left, a court decision over which they foam at the mouth and say all sorts of insane things.

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


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You would think that this is now clearly demonstrated to be an impeachable offense.

    myiq2xu in reply to OldNuc. | January 25, 2013 at 12:36 pm

    Yeah, impeaching Bill Clinton worked out so well.

    As long as the Democrats control the Senate impeachment is a waste of time.

      If this is upheld at the SCOTUS, this will effectively mean that the NLRB ceased to exist about a year ago, as every decision and rule made since then will be voided.

      Four of the five current “members” are recess appointments, leaving just one member which isn’t enough for a quorum.

      InRussetShadows in reply to myiq2xu. | January 25, 2013 at 5:38 pm

      Oh, so you are going to argue that because cowardly people in the Senate prevented Clinton from being thrown out of office, that his commission of high crimes and misdemeanors doesn’t matter? You are still trying to win the approval of the mass media, liberals at large, or someone — that’s why you’re throwing law and morality under the bus. Nice. Please tell me that you’re a Democrat. It’ll save me the effort of telling you to become one.

        Ragspierre in reply to InRussetShadows. | January 25, 2013 at 5:53 pm

        “…so you are going to argue that because cowardly people in the Senate prevented Clinton from being thrown out of office, that his commission of high crimes and misdemeanors doesn’t matter?”

        No. The argument is that REGARDLESS of what Obama does, the Senate majority will circle the wagons and acquit (assuming a bill of impeachment).

        This is like rationally observing that a racist jury during Jim Crow will acquit a murderer of a black man.

        What are you; stupid?

      JackRussellTerrierist in reply to myiq2xu. | January 26, 2013 at 1:43 pm

      The House impeaches. Bubba was indeed impeached. The Senate failed to convict him. While Bubba’s job approval ratings were not impacted by the impeachment, his ratings for integrity, honesty, trustworthiness, and good character suffered quite a bit and served as the main reason Gore didn’t want Bubba to campaign with him. That helped Bush, plus the fact that Bush was perceived as being of good character, and the public was ready for ‘good character’. So, in the long run, when you consider how close the 2000 race was, Bubba’s impeachment worked to our advantage when all was said and done.

      The impeachment penetrated the semi-consciousness of the low information voters who hadn’t otherwise taken much notice of just the Bubba scandals being discussed by media pundits and chatter of the political class. “Impeachment”, being so rare, made Bubba’s lack of honesty a really big deal all of a sudden.

This is the best part of the decision:

Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.”

    But the ruling has even broader constitutional significance, with the judges arguing that the president’s recess appointment powers don’t apply to “intrasession” appointments — those made when Congress has left town for a few days or weeks.

    The judges signaled the power only applies after Congress has adjourned sine die, which is a legislative term of art that signals the end to a long work period. In modern times, it means the president could only use his powers when Congress quits business at the end of a year.

    This ruling is bigger than the NLRB.

    I tend to disagree. Checks and balances among coequal branches of government should not mean that one branch declares What we say goes.

      ThomasD in reply to gs. | January 25, 2013 at 3:54 pm

      You are perhaps confusing ‘this what we say on the matter’ with ‘this is what we read the Constitution to say on the matter.’

      Some might consider that a distinction without a difference. If it is such then we might as well dispense with all issues of constitutionality, as well as any notions of black letter law.

        InRussetShadows in reply to ThomasD. | January 25, 2013 at 5:40 pm

        The argument that the Constitution doesn’t matter has already been made on this thread in the argument against impeachment. (What the law says is unimportant! What is morally right is unimportant! Impeachment failed once, so let’s not act on our principles again!) RINO herd, stop!

      JackRussellTerrierist in reply to gs. | January 26, 2013 at 2:13 pm

      Each of the three branches has its own bailiwick of authority. The SCOTUS’s and federal judiciary’s bailiwick is the constitution. If the constitution is the supreme controlling legal document, than the federal judiciary’s and ultimately the SCOTUS’s understanding IS the final word on what goes as far as the constitution goes. That’s why they’re called “constitutional” courts. Other courts, such as legislative courts, are controlled by congress.

      Obastard makes it clearer with each passing day how important a role the federal judiciary plays in checks and balances.

    Sanddog in reply to myiq2xu. | January 25, 2013 at 2:59 pm

    The use of the word “interpreting” is really too kind. What the left is doing is attempting to reinvent the English language and then bullying us into agreeing that “no” means “yes”.

This was a spanking, make no mistake.

It could also be a bellwether for other offenses by hte Obamabanana Republic.

    One can hold out hope for that, but I think it unlikely so long as “Roberts the Traitor” is the Chief Justice.

    He had a once in a generation opportunity to set a tone that the powers of Congress are NOT unlimited through the Obamacare decision, and basically what he said was that, while the Commerce Clause is not so expansive as previously interpreted, nevertheless the Government can do ANYTHING it wants so long as it labels it a tax (10th Amendment be damned).

    Instead he knelt and kissed the feet of the “politically correct” and begged them to not call the SCOTUS irrelevant and “political.”

    *(As you can tell, I’m only just a -little- bit bitter about this).

      Ragspierre in reply to Chuck Skinner. | January 25, 2013 at 5:49 pm

      Roberts is all over the map.

      This is, of course, what makes him a joker in the deck.

      BUT this was a UNANIMOUS decision, and I think well supported in the law.

I happened to be standing within earshot of Obama when this breaking news came over the wire. I’m not positive, but I believe he said, “what difference does it make?”

IIRC, the republicans didn’t issue a peep at the time; They just sat there and took it. John Boehner could have fixed that problem in a heartbeat by cutting off funding to the DoL but he was probably too busy sucking up to his buddy Obama on the golf course. We really need to replace Boehner with someone with a spine.

MaggotAtBroadAndWall | January 25, 2013 at 12:47 pm

All three judges were Republican appointees. Alert the WAAAAmbulance about the incessant leftsphere whining about to erupt.

Isn’t the Obama interpretation of recess, whereby the executive rules through pure gall, on its own initiative, when a co-equal (supposedly!) branch is in recess, cut from the same cloth which found Obama recently stating that he will knew what’s in Israel’s best interests?

The noun president is a derivative of the verb to preside, not to rule. The Constitution makes that point incredibly clear, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

The use of the absolute “all” seems pretty compelling. All means all and that’s all that all means.

The vast, vast majority of problems which have beset us can, IMO, be laid at the feet of multiple Congresses, and oodles of federal officers, not obeying the Constitution as written. All of these named persons had taken the Article VI oath to defend the very document they have gone out of their way to ignore or worse subvert. In its essence the Constitution is a document of limitation, not expansion.

Henry Hawkins | January 25, 2013 at 1:00 pm

Assuming the inevitable Obama appeal fails, this means over 600 decisions and actions by the improperly empaneled NLRB are invalidated.


    Midwest Rhino in reply to Henry Hawkins. | January 25, 2013 at 1:45 pm

    not established yet … still have to see Obamacare collapse, market collapse under Obama spending bombs, Iran to get nukes, Egypt to bomb Israel with our F-16’s, riots to break out from Obama calling every normal person a racist, China to get more aggressive ….

    There’s much more that could happen to “establish” his legacy. Impeachment over Benghazi would be the best route out, if new findings revealed something so bad even the senate would vote him out. (like collusion against US, with some of the Muslim Brotherhood that infiltrated his regime)

    But I’ll rejoice in this victory for today. 🙂

Finally some good news!

But remember that the glacier of “change” has gained momentum and will be difficult as a whole to reverse.

The anointed on is no fool as it was a majority of fools that re-elected him. As everyday passes, this apparent “Manchurian Candidate” is proving to be just that.

Interesting times lie ahead…

As Lee Corso said: “Not So Fast”..

‘Cause if one thinks that David Gregory gotta’ pass, if this hits Johnny Roberts of the Sups, “You Ain’t Seen Nothing Yet” BTO..

So now any affected party can sue for a reversal of any decision made over the past year? I also wondered in Tip Line what happens to appointments made by this “invalid” Board? Like Deputies and regional folks?

[…] is a really embarrassing setback for President iWonTwice especially since he prefers to regard the Constitution as merely an […]

2nd Ammendment Mother | January 25, 2013 at 2:08 pm

I can hope that SCOTUS would be reluctant to accept the case or overturn this ruling. After all, if ANY President gets to declare Congress in Recess at his whim, then he would also have the ability to declare SCOTUS in Recess.

Subotai Bahadur | January 25, 2013 at 2:08 pm

OK, this is good news. At least it is better news than an outright defeat. But it is not a victory. It opens the door a small crack for a victory.

The clock is in Obama’s favor. Pretty much everybody has got the feeling that this year is going to be the beginning of what my ancestors referred to as “interesting times”.

Options available to Obama:

1) ignore the ruling completely. This would force the plaintiff [after waiting to confirm that it was ignored] to file to the court for enforcement. That would start another Federal Court fight that could take months, and even if the plaintiff wins, means that Obama could still appeal to the Supreme Court.

2) appeal directly to the Supreme Court. Unless there is agreement to place it on the docket immediately [and with at least two justices who will oppose anything that Obama does not want, not likely]; that means it will not be docketed for hearing until after October 2013. This session ends in June 2013, but May and June are reserved for announcing decisions from earlier in the term and no new cases are heard those months. If he stalls till April, he has a free ride for functionally the rest of the year.

There is a reason for Hamlet’s noting “the Law’s delay”. There are procedural foot-dragging techniques that can make it take longer.

3) there is the technical possibility that Obama could submit to the Law, the Constitution, and court orders. There will be a short pause for breathing to resume normal pace after the outbreak of mocking laughter.

Yeah, I know. Just being complete. I’m pretty sure that there is no one here who thinks that has any probability of coming to pass. Yes, pigs can fly if enough thrust is applied. However, their glide ratio approximates a flailing cinder block; and there is not enough thrust in the catapults of CVN-76 to get that pig to V2 [can’t get this thing to subscript the 2].

If he yields on this case, much of his illegal agenda of the last 4+ years goes too. It goes far beyond this case.

4) let us say that it is appealed to the Supreme Court. And there will be with as much delay as possible. Not going to be heard until sometime in late 2013 at the earliest, and probably early 2014, with a decision not released till mid-2014. And that could easily be pushed back a year.

Many of the first conjectures about how the case would go are based on Kagan’s recusal for having been involved as part of the original government case.

I understand that she has already recused herself from this case, but I have no confirmation. If anyone has data on this, please post it. If she has already recused, is there a procedure to revoke that recusal at the Supreme Court level? How do you hold a Supreme Court Justice to the law when they are being blatantly partisan? And if the means involves the Senate, that means she is unfettered to do as she pleases.

Keep in mind that despite being part of the regime’s Obamacare case, she chose not to recuse herself and voted for Obamacare.

If she is and stays recused, the assumption is that it would be a 4-4 split which leave the lower court decision intact. If she is not recused, it is a precedential victory for Executive tyranny.

But let us assume that she is recused. We still have to face the vote of Chief Justice Roberts, who reversed his entire legal philosophy without warning in the Obamacare case. He wrote what became the dissent in the case, as the majority opinion. Then at the last minute he shifted to support Obama, and wrote an opinion that should scare the wee-wee out of Patriots. Admitting that the Obamacare Mandate was unconstitutional on its face, he allowed it under the rubric that it was a tax, and the Constitution could be violated if it was done in the form of a tax.

Time is not on the side of the Constitution. And the way is open for Obama to delay for the critical period of time. If it goes to the Supreme Court, besides the lack of a rule of law and the Constitution that has become the norm; there is a broad path for the Justices to easily act in support of their partisan bias’ to the Left.

Be pleased, but do not be over-optimistic. There is no way that this coming year will not be difficult. The question is how difficult.

Subotai Bahadur

    Good comment.
    Ok, what do you make of this other can of worms…NLRB held as not being in quorum, and all regulations and acts nullified.
    So, where does that start and end?
    Shall we go all the way back and question every single decision or action ever made by recess appointees and qualify them according to the validity of the appointment?
    How many lawsuits can one find throughout that entire period to bring?
    Certainly, there must be a pragmatic solution.

      Subotai Bahadur in reply to snowshooze. | January 25, 2013 at 6:32 pm

      The best I can figure, and I am not a lawyer, nor do I play one on TV, nor would I do so due to the damage it would do to my reputation;

      1) this case specifically, every decision made by the NLRB that was short of a quorum once you discount the appointments ruled illegal can be challenged in court and overturned. It is not automatic absent court filing; but it would be pretty much so once you get it in front of a judge. That includes the Boeing decision that Chuck Skinner mentioned above, the decision to allow the TSA gropers and goons to get the full protection of Federal union status [I would love to see them removed from sovereign immunity], and about 600 other decisions. NLRB is in and of itself a #10 can-o-worms on steroids and speed.

      2) the wider principle also applies to EVERY recess appointment made during what is now ruled as not being the constitutional period when such can be made. I admit that I do not know how many, but I know that they are public record and they are certainly hordes of people looking it up. I note that the office of US Attorney is a presidential appointment subject to confirmation by the Senate. If any of the US Attorneys are covered by this ruling, it is Katy-bar-the-door. The validity of any suits, opinions, or criminal prosecutions under their signature are now open to question. Depending on how the judges feel, if it is found that the Federal government should have known that the prosecution/suit was illegal by a reasonable reading of the circumstances of the appointment; one could see 42 USC § 1983 – Civil action for deprivation of rights – invoked, That is one of the few laws that does not have a defense of sovereign immunity, and there are punitive damages, I believe both against the guilty individuals and the government. That noise you may have heard when this was announced could have been sphincters slamming shut at the Department of Justice.

      3) As to how wide and how far back they have to go; my best guess is that the first screen will be whether or not there was a “recess appointment” of the type ruled unconstitutional. That will actually take care of most, if not all, of the time span involved. Buraq Hussein Obama was the first president to assert that he had the power to determine when the Congress was or was not in session. If some few cases are found of this earlier than 2009, then there would be the same problems for them.

      4) I have seen one other mention of a delaying tactic that could be used by the regime. They could ask for an en banc hearing before the entire court instead of just the 3 judge panel. There are, I believe, 5 other active judges on the DC Court of Appeals. The regime will have to own 4 of the 5 to prevail. Possible, given judicial ideology and the weight of Executive Branch pressure, but not likely.

      5) another, far less likely, alternative would be the Supreme Court refusing to take the case; letting the ruling stand in DC only. Consider that in the last decade or so, courts have avoided controversial, clear cut issues if at all possible. Frequently, the claim is that no one has standing to file. It would be hard to pull off, but if it could be done, it would mean that Federal rulings and regulations could be illegal and invalid in DC, and legal and mandatory elsewhere in US jurisdiction. If that were to be the Court’s choice, it would mean a) that a decision against the regime would be crippling to Obama, b) that a public decision for the regime would be a blatant declaration of Executive Supremacy over the other branches and would trigger an existential crisis for the Constitution, and c) that the principle of Judicial Review is gone for good.

      Watch this case, but do not invest overmuch hope or expect a speedy resolution.

      Subotai Bahadur

    snopercod in reply to Subotai Bahadur. | January 25, 2013 at 3:24 pm

    Chief Justice John Roberts will approve recess appointments as a tax… /sarc

“This decision has the potential to become the new Citizens United to the left, a court decision over which they foam at the mouth and say all sorts of insane things.”

See also Heller, McDonald, Bush v. Gore, or any other court decision that the left thinks differs even slightly from how they think the world should be run.

In short, leftists foam at the mouth and say all sorts of insane things all the time. This isn’t a special case.

I could have saved the DC Appeals court all their time and trouble.

Just a few comments from Daily Kos.

Judicial activism of the worst sort (31+ / 0-)
because it is blatantly partisian.


Roberts has spoken of recess appointments before and I suspect he’ll come down on the side of striking this ruling down.

by Walt starr

I’m pretty outraged about this and will wait to be coherent.


by Armando

In this case David has made a very good start at what’s wrong with this decision.

The DC circuit is still stuffed with far right wing judges, correct?

look for my eSci diary series Thursday evening.

by FishOutofWater
Now, I have to cleanse my hard drive!

Would you suggest Low or Permanent Press as the dryer setting?

A win for the Constitution?

This can not be allowed to stand.

“This decision has the potential to become the new Citizens United to the left, a court decision over which they foam at the mouth and say all sorts of insane things.”

The left hates the unitary executive. Unless, of course, it is their unitary executive.

    And that is the hypocrisy that you have to hit them across the face with EVERY SINGLE DAY and EVERY SINGLE TIME you interact with people of that nature.

    Remind them of their prior statements. HOLD THEM to their prior “claims.” Publicly DEMAND that they detail the difference between their hysterical screaming during the Bush Administration and their placid silence, if not cheering of the same (or more extensive) actions taken by the Obama Administration.

    In this particular instance, remind them about John Bolton’s recess appointment as US Ambassador to the UN and how they SCREAMED about it violating the “rights of the Senate to advise and consent” (and that was during an ACTUAL recess of Congress, not even a “pro-forma” session).

    Alinsky Rule #5 is in Full Effect.

Henry Hawkins | January 25, 2013 at 4:13 pm

Think of all the damage that’s been done during the past year by the NLRB, all the regulations, all the upheavals, and the costs borne by employers both big and small. Having complied and paid through the nose for the privilege, they now get a big Obaman “never mind, all is voided, oops!”

    Depending on the insurance policies involved that the businesses carry, they may be able to make an insurance claim against their insurer for the costs involved in complying with a governmental action later found to be illegal/unconstitutional.

    Especially if it’s a “general business damage” insurance policy from “non-physical occurrences.”

    If you’re a business owner, read the fine print on your Insurance policy. You may actually be covered for this.

    I’m sure Boeing’s manufacturing operations insurance carrier right now is sweating profusely.

    P.S- Stuff like this CAN be done, if you’re creative in framing the “loss” suffered. My company actually got an insurance carrier to pay to purchase new machinery to replace machinery that literally died of old age and over use once, because it was a “key piece of equipment” that we had insured policy against failure at the demand of our Customer. Since the tech (which was sound-based) literally no longer existed, they were forced to buy us a top-of-the-line laser measurement 100% sorting machine. It was fantastic.

      Henry Hawkins in reply to Chuck Skinner. | January 25, 2013 at 6:01 pm

      “If you’re a business owner, read the fine print on your Insurance policy. You may actually be covered for this.”

      I am, but my bidness oxen get gored by the state gov of NC rather than federal regulators. About the only fed reg set that hurts me is all the extra crap required by US DHHS HIPAA regs, far older than this Obama screw up.

      Thanks, though.

Hallelujah! Any chance the court could do their job and find B. Hussein unconstitutional as well and impeach the sorry son of a female dog? (Yeah, riiighttt.)

MaggotAtBroadAndWall | January 25, 2013 at 5:44 pm

The NLRB is essentially channelling Andrew Jackson who once said of Chief Justice John Marshall, “he made his decision; now let him enforce it.” In other words, the NLRB doesn’t really care about the ruling. Business as usual.

I wondered why the left seemed to be struck dumb yesterday on the ruling. Now we see they had to find a new name to attach to the Judges involved. Get a load of this gem

Neoconfederate Judges Rule NLRB Recess Appointments Unconstitutional

Saturday Pilot Fish Media Reporting on Court Ruling on Obama’s Unconstitutional Recess Appointments.

CNN: No obvious Reporting. More important to report a Dog Eats His Own Tail (See left hand top stories at CNN Website)

NBC: Whitehouse Sees No Impact

Yahoo News: Ruling Wont Affect Other Obama Picks

Repeat after me: There is no media bias, there is no media bias, there is no media bias

And the NLRB has announced that they will continue to conduct their business, as usual. Don’t expect any changes until and unless someone in the Obama Administration is either (1) impeached and removed from office or (2) is held in contempt of court and jailed to enforce obedience. Don’t hold your breath.