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

  1. None of these folks (Republican or Democrat) could care less about ethics, the Constitution, or the Law in general. It is all about winning, personal power, and enrichment. I am completely disgusted by them all, and surprised by nothing any more when it comes to ethical lapses and outright illegalities. They are all 100% corrupt.

  2. So what do you suggest when the Congress has literally flipped Obama a bird on everything he tries to get done? It seems to me that some members of Congress (McConnell comes to mind) are committing treason when they announce that their entire goal for 4 yrs (and now another 4 yrs) was to get rid of the President.

  3. I don’t like the decision, but I understand it on legal grounds. The practical effect of the appointment was that it allowed work to actually get done while the Senate is controlled by a minority of crazies who would not accept someone who was not crazy like themselves.

  4. rafflaw — neither side is crazy. Both sides are filled with very smart people. What the both are is corrupt narcissistic who each lie to their base to further personal power and enrichment. Neither side gives a crap about the moral/social things they say, that is for the poor folks they need to vote for them. At their core, they are all the same in every way.

  5. Magg
    your argument is invalid.
    Democrats controlled the house, senate, and executive branch for first 2 years of the Obama administration.
    and what did they do?

  6. So what would you want him to have done as the repubs blocked everyone and everything this president tried to do?
    Where was the outrage (and maybe it was there) when other presidents did it?
    “According to reports from the Congressional Research Service, during their time in office President Ronald Reagan made 240 recess appointments, President George H. W. Bush made 77 recess appointments, President Bill Clinton made 140 recess appointments, and George W. Bush made 171. Obama’s first term has seen a paltry 28. In this context,”

    Where was the outrage then, when it was the repubs who used it so many many more times.?
    That does not make it right but I am tired of it being wrong when it has been Obama, or Clinton but not much bother when it has been the repubs.

  7. This is a case of a correct Constitutionally based decision that merely perpetuates the decline of our entire system of government into what has become a plutocracy. When you have a political party whose legislators have simply come up with a strategy that pushes our government into dysfunction, but that is completely Constitutionally protected, what can be done? From a Constitutional standpoint the answer is nothing. Understanding the truth of that, the solution that remains to restore functioning is either a Constitutional Convention (good luck with that) or a Revolution (good luck with that too). I fear we are at the cusp of our (to this point mythical) “democratic system” collapsing into either an imperial, fascist state, or complete chaos.

  8. I wonder what will happen with the nominees who’s appointments were declared unconstitutional. Is a writ of quo warranto needed?

  9. Without having read the opinion, I suspect the court got it right legally speaking and it’s probably the best rule as well for the long term. I do think Republicans have been obstructionist, resulting in making the efficient working of government much more difficult. But, this whole problem goes away with filibuster reform, and the filibuster is NOT part of the constitution. At least with respect to appointments below cabinet and supreme court, I’d be in favor of the old Republican demand for an up-or-down vote for all appointees.

  10. Reblogged this on danmillerinpanama and commented:
    The Court of Appeals for the D.C. Circuit is far from being a “right wing-nut” court and is among the most highly regarded of the nation’s Federal Courts of Appeal. The three judge panel’s unanimous interpretation of the Constitution in this case should stand. It will likely to asked to reconsider the decision en banc and may do so. Once a decision becomes final, it is likely to make its way to the Supreme Court. What will happen there? A lot will probably depend on who the Supreme Court justices are then.

  11. OT – some thoughts on another potential appointment, that of Mary Jo White, current contender for progressive heart throb. Just another Trojan Horse?

    “While many of those who work for the SEC have previously worked in finance, White’s maneuvering to get Morgan Stanley CEO John Mack free of an insider trading investigation is particularly distasteful.”

    Or, ‘When asked why he went about with a lamp in broad daylight, Diogenes confessed, “I am looking for a [honest] man.”‘

  12. AY Pelosi says in the article ” For President Bush to use a recess appointment for such a controversial nominee not because there was a compelling case that Mr. Bolton was the best person for the job, but merely because the President had the power to do it subverts the confirmation process in ways that will further harm the United States’ reputation in the eyes of the international community. The American people deserve better.”
    The problem is that is not why Pres Obama did it, he had a repub congress that would not allow anything to go thru. It is really apples and oranges since Bush did not have a dem congress opposing any and all.

  13. I fear we are at the cusp of our (to this point mythical) “democratic system” collapsing into either an imperial, fascist state, or complete chaos. -Mike S.

    And as I’ve said, ad nauseum, it’s much worse than many realize.

    01.25.13 – 12:40 PM

    Only the Whistleblower Goes to Prison: John Kiriakou Gets 30 Months

    by Abby Zimet

    Former CIA officer and whistleblower John Kiriakou was sentenced to 30 months in prison for revealing in 2007 interviews that that Abu Zubaydah and other terrorism suspects were being waterboarded, making him the first CIA insider to confirm reports of torture during interrogation. He later spoke out forcefully against what he had witnessed: “There are things we should not do…One of them, I now firmly believe, is torture.” Kiriakou, who did not take part in any torture, thus becomes the only former U.S. official to go to jail for torture. From an interview:

    “I don’t think I am overstating this when I say I feel like we’re entering a second McCarthy era where the Justice Department uses the law as a fist or as a hammer not just to try and convict people but to ruin them personally and professionally because they don’t like where they stand on different issues….I am proud that I stood up to our government. I stood up for what I believed was right, conviction or no conviction. I mean they can convict anybody of anything if they put their minds to it, but I wear this as a badge of honor. I am not a criminal. I am a whistleblower. The thing that I blew the whistle on is now the law of the land.”

  14. Regardless LJC…. He did it….. Period…. End of Story…..

    On a side note…. Dont you think John Kerry had a hand in getting Rice derailed…..

  15. Mike S.,

    “I fear we are at the cusp of our (to this point mythical) “democratic system” collapsing into either an imperial, fascist state, or complete chaos.”

    “On the cusp of?” You mean you don’t think the democracy train rolled out of the station a while back?

  16. AY interesting idea about Kerry.
    (No toher president has had to contend with what this president has had to with the obstructionism stated as the only goal of the repubs from the night of the first inauguration.
    What was he to do, let the work of the government languish hoping at some point the repubs would see the error of their ways?
    Pres cant run for a third term but we still hear murmurings of the lets thwart this guy.

  17. I am not a conspiracy theorist but the more this goes on, Reid caving, I wonder about why the dems did not field a candidate against Boehner and why the repubs ran Romney who did not look good from the getgo as a winner. A good novelist could make a nice plot around this is how you go about consolidatinig power. (Hopefully not a nonfiction writer or historian of the future)

  18. “the panel unanimously ruled that Obama violated the Constitution with his circumvention of Congress.”

    And yet, not one word from any panel about the assumption of powers by the Executive without Congressional approval in claiming the power to execute citizens without due process.

    Nothing to see here. Move along.

  19. You know Lee, you can make it about race. They can make it about race. Even if Obama did everything that they wanted him to do. It could still be made about race. You’re harking on a dead ear here. I didn’t care for bush, but I wasn’t called a racist. I don’t care for Obama. I am reaching the point that when someone has to identify themselves as a party member, I don’t take what they say very serious. I have voted more times democratic than not. No one party is the answer the way the game is played today….. It is oh look what they did, or she did or they didn’t. Everyone is so busy protecting themselves and everybody else’s pot of gold…. Somebody needs to step up to the plate and do what’s right, not because of somebody might think badly of them…. Do the next right thing for the American citizens….

  20. It seems the modern-day U.S. Supreme Court hasn’t always been hostile to recess appointments:

    — excerpt from Bloomberg News on March 21, 2005:

    – – – – – – – – – – – – – – – – – – – – –

    The U.S. Supreme Court REFUSED to second-guess President George W. Bush’s temporary appointment of William Pryor to a federal appeals court after Senate Democrats blocked his confirmation.

    The court in Washington today turned down three separate petitions by people who challenged Pryor’s authority to participate in reviews of their cases. The appeals argued that the U.S. Constitution allows temporary appointments only during the recess between one-year sessions of Congress, not during breaks within a congressional session.

    The high court’s rejection is a boost for the (George W. Bush) administration, which a year ago made Pryor a recess appointee to the Atlanta- based 11th U.S. Circuit Court of Appeals after Senate Democrats twice blocked his confirmation. Bush said at the time that he was forced to put Pryor on the bench to overcome “unprecedented obstructionist tactics” by Democrats.
    – – – – – – – – – – – – – – – – – – – – –

  21. “Throughout history, the interpretation of this Recess Appointments Clause has evolved to the increasing benefit of the Executive Branch …” (JT)

    And so much else leading steadily down the road to an imperial presidency.

    I am reminded of Ben Franklin’s words of warning to the Constitutional Convention of 1787:

    “… there are two passions which have a powerful influence in the affairs of men. These are ambition and avarice—the love of power and the love of money. Separately, each of these has great force in prompting men to action; but, when united in view of the same object, they have, in many minds, the most violent effects. Place before the eyes of such men a post of honor, that shall, at the same time, be a place of profit, and they will move heaven and earth to obtain it.”

    and his view on a three person executive board rather than a single President … ” “The government is likely to be well-administered for a course of years, and can only end in despotism.”

    It is a great and good fight you are waging Jonathan Turley, but I wonder if the possible dangers to which Doctor Franklin alluded are not now the reality in which we live. The “course of years” has now ended and despotism is firmly entrenched.

  22. Over at volokh conspriracy John Elwood writes that this decision is in “acknowledged” conflict with a 2004 11th Circuit decision.

  23. Isn’t it clear that the reason Reps oppose so much of Obama’s agenda and deeds is that the agenda and deeds are so wrong (to them)? And I agree. Legislation is difficult and not supposed to be easy. It takes some thought and input by all sides and not a railroading.

  24. “It takes some thought and input by all sides and not a railroading.”

    Unless, of course, it’s a Republican agenda, then railroading is not only just fine, it’s SOP.

  25. So a single US Senator can simply put a hold on any nomination (as has been done repeatedly in th last 4 years) and there is literally NOTHING the President can do. That is a recipe for disaster, a simple declaration that the most obnoxious, radical, sinister, dangerous nut bag in the Senate can bring agencies to a grinding halt for their own selfish ends.

    I guess all those legal geniuses were wrong – the Constitution IS a suicide pact. So long, been goo to know ya.

  26. AY I merely seconded Just a gurl about race. Sadly I have come to the conslusion a lot of it is about race but it is also about being a democrat.
    They tried to undo the Clinton presidency by wasting 70million taxpayer dollars to find something on Whitewater and when they couldnt then they turned to sex(yes he was wrong it is morally reprehensible but no other president has been outed for it much less taken to task).
    With Obama they said from get go anything to keep him from winning again and lets undermine him by our obstructionism.
    The dems are not the best folk on the world, I am not defending a lot of their chicanery but it rarely seems as bad and antidemocracy as the repubs when they do their all to override the majority decision of the voters (and as they are now doing in Virginia saying urban voting districts should not have more say then rural, i.e. no longer one person one viote since the vote seems to go for the democrat)

  27. Obama should have stuck with the typical recess appointment method; that would have made the issues cleaner.

    That said, the court finding endorses an insane dilemma: Obstructionist politicians can on a whim hamstring certain functions of government. Overriding that intent raises the concerns surrounding “imperial presidency”

    Meanwhile the public, which expects a functioning and democratic government, get’s the shaft.

  28. John Elwood at VC:

    DC Circuit Strikes Down President Obama’s Recess Appointments

    The main thrust of the court’s opinion is that the recess appointment power extends only to intersession recesses–recesses between sessions of Congress–and not to intrasession recesses. Intrasession recess appointments have been made fairly commonly since WWII, and have been particularly common since the Reagan Administration. UN Ambassador John Bolton and Judge William H. Pryor, Jr. are two of the more high-profile intrasession recess appointments in recent years. The D.C. Circuit’s holding is is in acknowledged conflict with an Eleventh Circuit opinion from 2004. Intrasession appointments may be even more common than intersession appointments these day, so this is an important ruling as a practical matter.

  29. “I fear we are at the cusp of our (to this point mythical) “democratic system” collapsing into either an imperial, fascist state, or complete chaos.”

    Fascism and chaos meet eventually, Mike.

  30. Just to be smart, I scroll down to write it in reply to:

    “I fear we are at the cusp of our (to this point mythical) “democratic system” collapsing into either an imperial, fascist state, or complete chaos.” MIKES

    Did anybody ever see a successful sheep rebellion? This isn’t the time of the Reign of Terror in France. Here there are many Bastilles to storm.
    And we do not starve yet. We do not organize. For that leads to chopped off heads.

    I know where my money is going, and it ain’t on chaos.

    With all due respect. Even a moutainside grip can generate a leap by the foolhardy. And a small quibble will lead to a sermon.

  31. AY,
    Good rant, BUT…..
    “Somebody needs to step up to the plate and do what’s right, not because of somebody might think badly of them…. Do the next right thing for the American citizens….”

    Where is the line forming behind you. I will join it immy. In all friendliness.:-)

  32. And like clockwork:

    DOJ: Obama Recess Appointments ‘Constitutionally Sound’

    The Huffington Post | By Ryan J. Reilly
    Posted: 01/25/2013 3:02 pm EST

    WASHINGTON — The Justice Department is standing by President Barack Obama’s recess appointments to the National Labor Relations Board despite a decision from the U.S. Court of Appeals for the D.C. Circuit that found those appointments were unconstitutional.

    “We disagree with the court’s ruling and believe that the President’s recess appointments are constitutionally sound,” a Justice Department spokesperson said in a statement.

    The statement did not indicate whether the administration would appeal the decision to the Supreme Court, but it is expected to do so.

  33. When ever I read one of the Federalist Papers, I always get the feeling Madison was trying to convince himself.

    I think, in hind sight, the confederation group was probably right. There is too much power concentrated in the federal government. There is no system of checks and balances that could have kept the concentration of wealth and power of the ruling elite from happening. It should have never had a chance to happen. We were warned.

    I cant say for sure but I am thinking even Jefferson may have seen the writing on the wall when he was writing the Kentucky Resolution of 1798.

  34. Here was my comment on JT’s testimony back then:

    Professor Turley’s testimony before congress:

    “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 …”

    (from PDF of his testimony in previous post)

    What the Constitution says seems to be the minority view more and more.

    I am glad Professor Turley advocates what the text says in this case.

    (Dredd – Turley Blog Comment). I think it is time that the Constitution is the one they are talking about when they take the oath to uphold it.

  35. DonS 1, January 25, 2013 at 12:29 pm

    OT – some thoughts on another potential appointment, that of Mary Jo White, current contender for progressive heart throb. Just another Trojan Horse?


    Choice of Mary Jo White to Head SEC Puts Fox In Charge of Hen House

    by Matt Taibbi

    POSTED: January 25, 9:00 AM ET


    The e-mail was dated September 8, 2005 and addressed to Paul Berger with the subject line, “Debevoise.” The body of the message read, “Mary Jo [White] just called. I mentioned your interest.”

    So Berger was passing notes in class to Mary Jo White about wanting to work for Morgan Stanley’s law firm while he was in the middle of quashing an investigation into a major insider trading case involving the C.E.O. of the bank. After the case dies, Berger later gets the multimillion-dollar posting and the circle is closed.

    This whole episode highlights everything that’s wrong with modern Wall Street. First of all, everybody’s buddies with each other – cops and robbers, no adversarial system at all. As Bill Murray would say, it’s dogs and cats, living together.

    Here, a line investigator gets a good lead, it’s quickly taken out of his hands and the whole thing is negotiated at 50,000 feet by friends and former co-workers of the top regulators now working at hotshot firms.

    If Barack Obama wanted to send a signal that he’s getting tougher on Wall Street, he sure picked a funny way to do it, nominating the woman who helped John Mack get off on the slam-dunkiest insider trading case ever to cross an SEC investigator’s desk.

    When I contacted Gary today, his take on it was simple. “Obama is not going to clean up financial corruption,” he said, “by pinning a sheriff’s badge on Wall Street’s protector-in-chief.”

    Credit to Matt Taibbi: “As Bill Murray would say, it’s dogs and cats, living together.”

  36. ““On the cusp of?” You mean you don’t think the democracy train rolled out of the station a while back?”


    You should know by now that my style is to try to be “moderate” in my pronouncements…….sometimes.:) I agree the train has left the station and I think it pulled out on Friday, November 22, 1963, in Dealey Plaza, Dallas, Texas.

    “Fascism and chaos meet eventually, Mike.”


    This is quite true. In my thinking when I wrote that I was thinking of chaos in terms of the U.S. breaking down into numerous hostile satraps. Then again that might have always been the case.

    “Did anybody ever see a successful sheep rebellion? This isn’t the time of the Reign of Terror in France. Here there are many Bastilles to storm.
    And we do not starve yet. We do not organize. For that leads to chopped off heads. I know where my money is going, and it ain’t on chaos.”


    You have hit at the heart of the problem when it comes to radical change. When the many are moderately comfortable, rebellion becomes improbable. I wonder though since 30 million, or so, American’s are now living in poverty, what is the number that is the “tipping point”.

    “When ever I read one of the Federalist Papers, I always get the feeling Madison was trying to convince himself.”


    It’s my guess that the majority of our Founding Fathers were wise enough to have great reservations about their system actually working. I think they gave it the best shot, which also included their own self-interest and hoped for the best. I personally don’t believe that there was ever a time when the overt ideals of the Revolution, or the operation of the Constitution was ever anywhere near what was hoped for by our founders.

  37. “I cant say for sure but I am thinking even Jefferson may have seen the writing on the wall when he was writing the Kentucky Resolution of 1798.”

    Yep. Particularly what he said there about the N&P Clause being open to abuses. There is a good reason why he’s my favorite President and why he’s widely considered the smartest man to ever hold the job of President. It’s because he was the smartest and most prescient man to ever hold office.

  38. @ ap and Mary Jo White scam: I’ll say it again. Bring in Elliot Spitzer. He’s done nothing that vaguely mirrors the disgrace the US government brings on itself daily, not the least in coddling and enabling fraudsters.

  39. More Wall Street worries and appointment pitfalls: right on time Elizabeth Warren writes on “Avoiding Wall St. shuffle’s perils”:

    “Big business orthodoxy against rules and regulations can seep into the bones, including the bones of new policymakers who are charged with protecting consumers and strengthening markets. Industry groupthink and overconfidence can prevent clear and evenhanded analysis of problems. The result can be a group of decision makers who are self-confident in the extreme and who end up clearing the path toward the sort of recklessness and excessive greed that have already broken the economy once.”

    This just following Matt Taibbi’s piece (linked at 5:00, @ap above) where he references a former hedge fund manager, to wit,

    ‘ “That move, being a tough prosecutor, then going to work defending scumbags, you can only make that move once,” was his point. “You can’t go back again, you know what I mean?”’

    (disclaimer I am not endorsing the words of any pol, even Warren, though what she is saying sounds good on it’s face)

  40. “Republicans find the D.C. Circuit a very friendly playing field these days. It has five active judges appointed by Republicans, three active judges appointed by Bill Clinton, and no judge appointed by Barack Obama. That’s true even though there are three vacancies. No Obama appointee has made it onto the bench.

    Filibuster, y’know. ” The Atlantic Wire

  41. “The Republican minority in the Senate hates the NLRB, whose job it is to make sure workers get a fair chance to bargain with their employers. So from 2010 to early 2012, the Republican minority simply filibustered all nominations to the board, with the result that the NLRB fell below its required quorum of three members. In late 2011, Republicans feared that Obama would make recess appointments when they went home for Christmas. They didn’t control the Senate, and so to prevent the leadership from “recessing,” they used their control of the House to engage in a constitutional trick. Under Article I § 5 cl. 3, “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days ….” The House leadership refused to consent to a Senate adjournment, so every three days, one member who lived nearby showed up, convened the body with all the élan of Ben Stein in Ferris Bueller’s Day Off, and then immediately adjourned. Senate Majority Leader Harry Reid was unhappy — but the “pro forma sessions” trick was, in fact, one he himself had created during the George W. Bush Administration, as a way of blocking Bush’s use of the recess power.

    In January 2012, Obama, with the advice of his Office of Legal Counsel, concluded that “pro forma” sessions were not real sessions, and thus that the Senate was in recess. He appointed three members to the NLRB, which began doing business.

    One matter that came before it was a complaint against a soft-drink bottling company in Yakima, Washington, that had allegedly reneged on a written agreement with its union. The union won an order against the company in front of the NLRB itself; the company appealed to the D.C. Circuit, however, arguing that the NLRB didn’t really exist because three of its members had been “recess appointments.” Atlantic

  42. NLRB ‘respectfully disagrees’ with ruling
    1/25/13 3:34 PM EST

    The National Labor Relations Board on Friday declared that it remains open for business, despite a court ruling invalidating three of President Obama’s appointees to the board.

    “The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld,” NLRB Chairman Mark Gaston Pearce said in a statement.

    Pearce asserted that the ruling does not affect the board’s orders outside of the case decided Friday, Noel Canning v. NLRB, and noted that “similar questions have been been raised in more than a dozen cases pending in other courts of appeals.

    “In the meantime, the Board has important work to do,” he said. “The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

  43. Well, Ben Franklin said it cogently just after the signing: “You have your replublic, Madame, if you can hold on to it.”

    Impeach Obama. Show that he is only the lesser of two evils, and does not have our confidence. He is a traitor, and a perjurer of his own oath of office.

    Proven each and every day, often with many separate decisions. As he himself said during his 2007 campaign: “A president must be able to juggle many issues at the same time.” And doing the bidding of Wall Street is just one of the many tasks, especially when Wall Street is calling the shots along with the financial sector. So saying yes to them is no strain at all.

    He reads the exec papers during his morning squat and slips them under the threshold to the waiting aide, initialled and clear. A certain odor clings to them. Spreading his bacteria to one and all.

    Put good ol’ Joe in the Oval with a gun aimed at his head, held by ?????,

  44. DonS,

    You are among the people that I highly respect. Were you serious when saying bring in Eliot Spitzer?

    My knowledge being zero, I wikied and chose the Prostitution scandal article to read.

    On that basis I would not trust him to walk my dog—-if I had one.

    He established a reputation using his prosecutorial leeway to prosecute on ring, while ,in likelihood of what was determined happened later by investigations, using the services of a competing ring free of charge.

    He, I believe, is one of those who compete in the world of the rich and powerful by showing off how crooked he could be to his competitors.

    Surely it was NOT his salary as gov paying for the services. And adding the offshore delivery company just was his way of showing he was a high-roller.

    Who the stupid banker who refused to do his hiding of the many transfers is perhaps known. Was it a temporary misstep? Or a man to run for President?

    I trust that I have made my point—-likely all too well.

    You obviously were kidding the gullible me (most likely) or hoping for a gapflab as we say in Swedish, ie covering our screens with coffee.

    All was silence, but for one yea-voice. Clueless me does not know what your intentions were.

    To be unpopular with Wall Street, is a pose, Does anybody dare cross them?

  45. Sorry to disappoint, ID7070, I wasn’t kidding about Spitzer. I am not an expert on him by any means but I am certainly not less horrified by his sexual peccadillos than by the myriad others we know about in politics, or more to the point, the ones we don’t know about — just to mention sexual issues. I think that when you’ve got a guy who has been brought low, i.e., you know ‘the worst’ about him, you potentially have a guy who can’t be seduced into common corruption. Or maybe not. What seems clear is that appointments don’t go to the myriad of really capable people who 1) don’t have connections and 2) are likely to be ground up by politics.

    I for pragmatically taking a brick bat to the creeps that have brought down our economy. If Spitzer is the guy, the junk yard dog as it were, let him have at it.

    Hope we can still be friends😉

  46. YO JT: It is President Obama. Not Obama.

    How would you like it if your students just called you Turley with no Professor in front? Say, they raise their hand in class and say: Yo, Turley!
    It is purposeful of course. I do it too when I speak about the war criminals like Bushie and Cheney.

    As for the rest, I agree with the second comment above by Magginkat.
    Government does not function here when Congress is in session. They are in recess early and often.
    Mitch McConnell needs to have his own cartoon show. Or perhaps Sesame Street could put him with Big Bird. He is such a dumb looking sum itchBay. He does it on purpose to cater to his constituents. I came from them parts myself when I was a human in a prior incarnation and we did not talk so dorky. It is all a Con. A republiCon. And Congress is never in Recess, even when they are home for the holidays. And the Supreme Court does not take off work for July, August and September either. No, they are working on Circuit. And doing cert petitions. And sawing logs. And using ScaliaCare to buy oxycotton.

  47. ps, if you have a recommendation of someone (for SEC), ‘untainted’ who can kick some butt, let us know. Ultimate question, as always, would such an individual be supported throughout the executive branch to do the massive job needed?

  48. DonS,

    Of course we can, agreement is not necessary for that.

    But I still use my sour harp and play a dirge to most positive comments.

    Did we not recently see how the BATF is in fact circumscribed in re guns to being a non-operative agency by congressional restrictions? What a shock that was to me. And is the BATF alone. Nix.

    Previous study shows many other guard dogs not functioning except as a scenery. No industry has any regard for any of them..

    So regardless of who is nominated, and it is guaranteed it will be a willing slave, he will operate as a sleight of hand artist in fooling the public and secretly cooperating with the industry to be regulated..

    SEC is no exception IMHO.

  49. 707: My my you are on occasion even more the cynic than I am, and that is quite an achievement. BTW, google Pecora commission, if you’re not already familiar with it (I am only a bit). An example where some good can be done in the public arena to address financial corruption. (I’m sure someone here may likely tell me I’m way off base)

    BTW, ID707, your ‘gullibility’ as you call it, and some of your talk, reminds me very much of a friend of mine who was born in Sweden but came to the US with his family as a young boy.

  50. Nobody can hold the gun unless we have public financing and free air time for all candidates for political office in all elections.

  51. December 7th, nineteen hundred forty one, is a day that will live in infamy. Why? Because it is the last time that this country went to war without a President circumventing Congress. If you die in combat in a Police Action then you are not a war veteran. You were merely a LEO in the wrong place at the wrong time.

  52. “Nobody can hold the gun unless we have public financing and free air time for all candidates for political office in all elections.”

  53. Spitzer would be my choice too.

    He is already rich so no worries, always been rich too.
    Hard to buy someone like that who is standing on principal.

  54. Spitzer is a good choice but he is not confirmable, and I doubt he would want to harm his wife and children by having the past brought up in public hearings.

  55. That is a whole lot different than having Greenberg’s stooges in the Senate and the press trying to destroy you. That feud is still going on.

  56. I remember seeing a description of some social research — cannot now find the citations but I’ll go ahead and describe it anyway. Some social science research scientists did the following experiment:

    6 kids were invited in to play a game in order to win prizes. 30 Mexican kids; 30 American kids, all about 6 years old. They were all paired off by 2’s (15 pairs of American kids, 15 pairs of Mexican kids). They were given a game board that had a bunch of slots in a straight line, and each then had a little stone (one kid white stone, one kid black stone) that started on the square first in front of one kid. They were told the rules:

    You can only move one space forward or one space backward, either your own stone or the other guy’s stone, and you cannot move any other way. Whoever gets to the other side first wins a prize and then you both start again. You can either move YOUR piece forward when it’s your turn, or you move the OTHER person’s piece BACKward with that same move, but not both. You can even move your own piece backwards or the other person’s piece FORWARD. Any way you want, but never TWO squares in one move. You take turns for who goes first.


    The Mexican kids all (or nearly all) played the game quickly, winning gobs of prizes, by the method of BOTH KIDS moving one of their pieces in the winning direction, turn by turn. They’d move one’s piece to the other side quickly and then start over and move the other person’s piece to their side quickly, racking up the prizes.

    The American kids mostly played a blocking game. As soon as one moved his own piece forward, the other used his turn to move that same piece BACK, leaving it where it was before his turn. They kept doing this and nobody won any prizes.

    The Republicans in Congress have played the blocking game. Just keep impeding, preventing, blocking, destabilizing, stopping, and interfering with government. Seeking failure just so they can say the administration failed. They don’t even care if the losses are AMERICA’s losses. Shame on them.

    So what do you suggest when the Congress has literally flipped Obama a bird on everything he tries to get done? It seems to me that some members of Congress (McConnell comes to mind) are committing treason when they announce that their entire goal for 4 yrs (and now another 4 yrs) was to get rid of the President.

    I’d add, “OR PROVE HE WAS NO GOOD.”

    Prove Obama was not worth voting for no matter what happens. Prove we were not wrong; prove we were right about him not being a good president.

  57. Looky here:

    State prosecutors who investigated the late Aaron Swartz had planned to let him off with a stern warning, but federal prosecutor Carmen Ortiz took over and chose to make an example of the Internet activist, according to a report in Massachusetts Lawyers Weekly.
    Middlesex County’s district attorney had planned no jail time, “with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner,” the report (alternate link) said. “Tragedy intervened when Ortiz’s office took over the case to send ‘a message.'”
    The report is likely to fuel an online campaign against Ortiz, who has been criticized for threatening the 26-year-old with decades in prison for allegedly downloading a large quantity of academic papers. An online petition asking President Obama to remove from office Ortiz — a politically ambitious prosecutor who was talked about as Massachusetts’ next governor as recently as last month.
    Ortiz, 57, also came under fire this week for her attempt to seize a family-owned motel in Tewksbury, Mass., for allegedly facilitating drug crimes, despite ample evidence that the owners worked closely with local police. In a stinging rebuke, U.S. Magistrate Judge Judith Dein tossed out the case yesterday, siding with the motel owners — represented by the public-interest law firm Institute for Justice — and noting (PDF) that prosecutors had alleged a mere “15 specific drug-related incidents” over a 14-year period during which “the Motel Caswell rented out approximately 196,000 rooms.”
    “I don’t think she should have the power she has to pull this stuff on people,” Russ Caswell, owner of the Motel Caswell, told the Boston Herald last night. One reason prosecutors file forfeiture cases is that proceeds from the sale of seized property can be used to fund the budgets of law enforcement agencies. (Other nearby businesses that also experienced infrequent drug-related activity were not, however, targeted by Ortiz.)
    The Massachusetts Lawyers Weekly report was written by Harvey Silverglate, a prominent Cambridge criminal defense lawyer whose clients have included Michael Milken and Leona Helmsley. Silverglate, the author of Three Felonies A Day: How the Feds Target the Innocent, is of counsel to the firm that initially represented Swartz in his attempts to defend himself against 13 felony charges brought by Ortiz’s office. Those charges carried a maximum penalty of 50 years in prison.
    Silverglate told CNET today that:
    “Continuance without a finding” was the anticipated disposition of the case were the charge to remain in state court, with the Middlesex County District Attorney to prosecute it. Under such a disposition, the charge is held in abeyance (“continued”) without any verdict (“without a finding”). The defendant is on probation for a period of a few months up to maybe a couple of years at the most; if the defendant does not get into further legal trouble, the charge is dismissed, and the defendant has no criminal record. This is what the lawyers expected to happen when Swartz was arrested for “trespassing at MIT.” But then the feds took over the case, and the rest is tragic history.
    Ortiz has defended her actions as appropriate. A representative for Ortiz’s office did not respond to a request this afternoon for comment on this story. A representative for Gerard Leone Jr., Middlesex County’s district attorney, said she did not have an immediate response to questions about Swartz’s prosecution.
    ‘Aaron’s Law’

    • Neelie Kroes, the vice president of the European Commission, wrote in a blog post that: “If our laws, frameworks, and practices stand in the way of us getting all those benefits, then maybe they need to be changed.”
    • The Electronic Frontier Foundation posted additional suggestions for “Aaron’s Law,” an effort to rewrite the Computer Fraud and Abuse Act in response to Swartz’s prosecution.
    • Harvard professor Larry Lessig said he would give the Roy L. Furman Professor of Law and Leadership lecture on Feburary 19 on “Aaron’s Law.”
    • Michael Eisen, a biologist at UC Berkeley, wrote that academia “betrayed and continues to betray Aaron Swartz.”
    • Open-records pioneer Carl Malamud spoke about “Aaron’s Army” at a memorial service at the Internet Archive yesterday.
    Ortiz compared Swartz to a common criminal in a 2011 press release. “Stealing is stealing whether you use a computer command or a crowbar,” Ortiz said at the time. Earlier this month, less than three months before the criminal trial was set to begin, Ortiz’s office formally rejected a deal that would have kept Swartz out of prison. Two days later, Swartz committed suicide.
    “He was killed by the government,” Swartz’s father, Robert, said last week at the funeral in Highland Park, Ill., according to a report in the Chicago Sun Times.
    Swartz was accused of 13 felony counts relating to connecting a computer to MIT’s network without authorization and retrieving over 4 million academic journal articles from the JSTOR database (he was permitted to access JSTOR because of his Harvard affiliation, but not to perform a bulk download). The advocacy group Demand Progress, which Swartz had helped to create and which helped to defeat the Stop Online Piracy Act a year ago, likened it to “trying to put someone in jail for allegedly checking too many books out of the library.”
    If Swartz had stolen a $100 hard drive with the JSTOR articles, it would have been a misdemeanor offense that would have yielded probation or community service.
    But the sweeping nature of federal computer crime laws allowed Ortiz and Assistant U.S. Attorney Stephen Heymann, who wanted a high-profile computer crime conviction, to pursue felony charges. Heymann threatened the free-culture activist with over 30 years in prison as recently as the week before he killed himself. Rep. Zoe Lofgren, a Democrat whose district includes the heart of Silicon Valley, has proposed rewriting those laws.
    The Boston U.S. Attorney’s office was looking for “some juicy looking computer crime cases and Aaron’s case, sadly for Aaron, fit the bill,” Elliot Peters, Swartz’s attorney at the Keker & Van Nest law firm, told the Huffington Post. Heymann, Peters says, thought the Swartz case “was going to receive press and he was going to be a tough guy and read his name in the newspaper.”

  58. Thank you Mr. Turley. At some point, left or right, someone needs to hold all politicians accountable. I’ve often wondered how much sense it made to have the head of the justice department appointed by the President. Fox in the hen house as it were.

  59. A welcome ruling.

    And this ruling even had the foresight to address the cacophony of expected objections (as we heard here) relating to so-called “needless” “minority” Republican “crazy” “obstructionists” who “flipped Obama the bird” due in part to “race”:

    In any event, if some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands. As the Supreme Court observed in INS v. Chadha, “the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” 462 U.S. at 944. It bears emphasis that “[c]onvenience and efficiency are not the primary objectives—or the hallmarks—of democratic government.”

  60. In my view the court correctly decided this case. However, the ruling points to the critical importance of filibuster reform, and Sen. Reid’s capitulation earlier this week on that issue virtually guarantees another four years of legislative frustration.

  61. Probably on the day that Obama made his unconstitutional appointments, there were 1,000 different unconstitutional actions taken in 1,000 different courts and agencies of our government. If any of them could be remedied, it would only be with the help of very prestigious, capable constitutional lawyers who wanted to devote their paid or unpaid time to overturning these unconstitutional actions. Any one of them could have ruined three or four lives. Maybe FIVE. Yet where, oh where, would those prestigious, diligent, committed, forceful, capable constitutional lawyers, complete with almost unlimited resources, be found? Not on every twig of the apple tree! The life interest of 1,000 people denied without due process — oh well, they couldn’t afford counsel. Larry Tribe would have told them that they didn’t need a “novel constitutional theory” — all they needed was a good lawyer to work for them, exclusively, for a year. That’s all. So now and then a prestigious, capable constitutional lawyer happens along. He’ll get an unconstitutional appointment declared unconstitutional by all his efforts; he’ll spend eight years getting a bill of attainder removed that could have allowed a kid to live in her own country without exposing her to rape; he’s got to triage his cases, after all.

    I’m not saying what Obama did was constitutional. I’m saying our courts stink worse than a campers’ outhouse in a Southern summer and “unconstitutional” defines the normal everyday removal of the fundamental rights of thousands of hapless people ground up in their corrupt masticating jaws and I frankly do not care if an appointment of an official to serve in an obstructionist federal soul-destroying conscience-free clique is kosher or not. I wish somebody would address really important denials of really important constitutional rights — the kind that make it impossible for a 71-year-old man who worked for 52 years and has no pension and no back-up to get dental treatment when he has a tooth-ache. As for the rest of it, let it be unconstitutional. We’re a sociopathic bunch of self-important punks for all we show of either national pride or common responsibility and I am glad — GLAD — GLAD! — that finally nearly everyone in this country is beginning to feel what “UNCONSTITUTIONAL” really means. I wish us nothing more nor less than what we now deserve; I got it long ago and the rest of us need their shares put into big print so they can read it: NO JUSTICE, NO PEACE.

  62. 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.

  63. justagurl
    you are misguided if you think color has a place in any of this….
    a weak argument except for those who seek to deflect from the issue.
    politics is a very much a religion to some.

  64. 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.

  65. 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.

  66. 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.”

  67. 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.”

  68. 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.”

  69. 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….

  70. 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.


    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.

Comments are closed.