Congress, Constitutional Law, Courts, Politics, Society

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. 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…..

  2. 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

    https://www.commondreams.org/further/2013/01/25-1

    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.”

  3. 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.

  4. 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.”

    http://news.firedoglake.com/2013/01/25/sec-head-nominee-mary-jo-white-facing-scrutiny/

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

  5. Darren,

    The acts completed will not be undone… Until after the appointment is declared invalid…

  7. 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.

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

  11. 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.

  12. 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?
    http://www.motherjones.com/mojo/2012/01/chart-day-presidential-recess-appointments
    “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.

  14. 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?

  15. 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.

  18. 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.

  19. 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.

  20. 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.

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