Court Rules Obama Appointments Violated The Constitution

PresObamaA year ago, I testified in Congress that the recess appointments of President Barack Obama were unconstitutional. Those four appointments by President Obama included Richard Cordray, who had been denied confirmation to a consumer protection board in a Republican filibuster. While I liked Cordray, I testified that the appointments were in my opinion clearly unconstitutional. The D.C. Circuit has now agreed with that view and the panel unanimously ruled that Obama violated the Constitution with his circumvention of Congress.

In my prior testimony, I discussed how Obama — and by extension the Office of Legal Counsel — violated both the text and the purpose of the recess appointments clause. It was an interesting hearing with other experts testifying that the appointments were constitutional — supported by the January 6, 2012 opinion of Assistant Attorney General Virginia Seitz and the Office of Legal Counsel (OLC). I was very critical of that opinion.

Throughout history, the interpretation of this Recess Appointments Clause has evolved to the increasing benefit of the Executive Branch – allowing the Clause to be used to circumvent congressional opposition. Indeed, the debate today is generally confined to the question of what technically constitutes a “recess” for the purposes of the Clause, treating as settled the question of whether the Clause can be used to fill a position that the Senate has chosen to leave vacant. In my view, the Clause is now routinely used not only for an unintended purpose but a purpose that is inimical to core values in our constitutional system. I have long favored the original interpretation of the Clause: that it applies only to vacancies occurring during a recess. This interpretation is truer to the Constitution and would avoid many of the controversies of modern times. I readily admit that I am in the minority on that view, but I discuss the original and later interpretations to demonstrate how far we have moved from the plain meaning of the Clause. Frankly, I believe that our system would be far better off under the original meaning of the Clause, which would have avoided many of the controversies of modern times.

The panel was composed of Chief Judge David B. Sentelle, and Judges Karen LeCraft Henderson and Thomas B. Griffith.

The case is Noel Canning v. NLRB, U.S. Court of Appeals for the D.C. Circuit, No. 12-1115.

Here is the opinion: 12-1115-1417096

Source: NY Times

96 thoughts on “Court Rules Obama Appointments Violated The Constitution”


    During a deposition, Vincent Kelly (DEA Special Agent in the asset forfeiture division covering all of New England) stated that his job is “primarily just mainly looking for property to be forfeited.” And how does he do that “looking?” He trolls the Internet for Registry of Deeds “to find out who owns the property,” and “how much equity is on the property.” Then he contacts local law enforcement – in this case, the Tewksbury Police – to see if any crimes have been reported on the property.

    The incentive for locals in this confiscation racket is called “equitable sharing,” which can yield them up to 80 percent of the booty. In the Caswell case, that could mean $1.2 million for the Tewksbury police to spend on new cars, uniforms, hi-tech equipment, junkets to Hawaii. Meanwhile, Caswell and his wife will have been impoverished.

  2. I am taking this opportunity to test my ability to post; I want to say I am a big fan.

  3. The appeal will go to the DC Court of Appeals en banc– meaning the whole bench of sitting members who arent senior members. They wont want any senior moments here. It would seem that if there are any recess appointees on the bench that they would recuse themselves. If the case goes to the Supreme Court they will be in recess from July 1 to end of September. So between Congress’s recess and the Supreme Courts’ recess, this issue may get resolved by 2015.
    The article does not mention how many judicial appointments are sitting on the back burner without an up or down vote by this RepubliCon controlled Senate. There is one judgeship in NC that has been vacant for six years.

  4. Id707,

    As you’re aware, people will let you down and also be the same door stop that prevents one from going forward….. I think that when others see folks struggling, the first step is the try and help….. Then, for whatever reasons…. When they are succeeding…. People intentionally or unintentionally put stops in the way…… I think Steven Jobs book is a good read…. So I prefer for the most part to fly solo….

  5. Idealist, I was just on a rant because constitutionality seems to be so important when we’re contemplating the rights of a pedophile or the rights of a recalcitrant obstructionist Congress that would like “its” country to be punished for electing the wrong guy. When we try to divert attention to the constitutionality of the common woman (who “will rise like a common loaf of bread”? I doubt), there’s no great legal scholar ready to go to bat for her.

    My own personal angry bottom line (which is what I felt acutely on 9/11/2001 as I drove around to grocery stores to make deliveries of rice and beans to those families I knew who had children) is “GOOD; let the whole country get involved in what it’s like to be attacked and brought down for no reason. GOOD; let’s spread this around a little and see how they like it.”

    1. Will finish eating my bacon and eggs whice my helper made very well, her style.
      Don’t want it to get cold, and need to understand and possily reply to your observation and decision. Your social awareness is very special.
      Reminds me of MikeS saying what about the 30 million still in poverty?
      I was going to answer him that we don’t give a piss about anything ourside our door. Just what’s on TV now. “And the kids can go screw for all I care, says Mr Average Joe.”

  6. Malisha,

    Just when we think we have the problem covered, bei it Obam’s appointments or whatever, YOU then show us the HORRENDOUS system that must be re-done. And nobody in their right mind dares to suggest a how to do that idea.

    It is in our courts the cases are decided, but it also is the laws and bureaucracy that enables the initiative to prosecute.

    I won’t touch on such practicalities as availability of lawyers or their payment..

    For if that were solved (impossible), then restrictions on court resources would set a stop.

    Could we get (in a dream world) an act of Congress, that would stop all non-constitutionas cases and devote resources to processing on big C cases—–Ah, that would be a dream fulfilled.

  7. DonS,

    I wrote you a long missive, and my computer apparently needs “re-formatting after 5 years of use” and the crap ain’t stable and WordPress stuff goes down the drain. The link goes down no visible or audible warning.

    Yo, thanks for the Pecora commission.
    Try this. Point. Using amendments was slow work so they found the loophole in the tax clause which they have used for everything enacted by Congress since then.

    I wrote on cynicism and gullibility too, but will get back later on that. But gullible Swedes suit me fine. And JT’s has confirmed my latent cynicism.

  8. Maybe we should refer to President Obama as Barry. President Roosevelt as Frankie The Smoker. President Eisenhower as Ike. President Kennedy as Johnboy. President Johnson as LBJ. President Ford as Fordie. President Bush as Bushie One and the other one as Midland Bush. President Clinton as Bill. President Truman as the Failed Haberdasher. President Hoover as Herbert Vacuum. President Coolidge as Calvin Who. President Wilson as Woodrow Segregationist Forever. President Roosevelt as TR.

    Enough of this formality in referring to our President. Same with doctors, lawyers, and Indian Chiefs.

    I am hip to calling the Affordable Care Act as BarryCare.. No Child Left Behind as BushieKids. Military Industrial Complex as Ike’s World.

    1. I went to a rheumatologist the other day. He put out his hand for me to shake and said I’m John Smith” I have never done this but said without thought, Do you prefer John or Dr. Smith. He looked dumbfounded for a second and then said John is fine. Now when I call hinm that he still looks a little surprised, and maybe peeved.
      Went to a neurosurgeon, same thing. I’m Joe Doe” Do you prefer Joe or Dr. Doe. “I went to school for the title it is Dr. Doe.”

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