A 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
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.
Note: I said poorly constructed, not poorly designed.
Frankly,
Some pacts break like the snapping of a twig. Others slowly fail like a poorly constructed dam.
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)
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.
“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.
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.
Over at volokh conspriracy John Elwood writes that this decision is in “acknowledged” conflict with a 2004 11th Circuit decision.
“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.
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: http://tinyurl.com/b7r47ul
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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.
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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….
Gene…
I am pretty sure that lovely guy that was executed while on holiday
was done so under the Patriot Act….
“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.
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)
And today Harry Reed caves on real fillibuster reform. We are screwed.
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.
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?
Justagurl ditto from Shano
word, justagurl
Yep… Can’t have that black President doing the EXACT same thing ALL of those WHITE Presidents did……
My freaking god….. and I’m an Atheist….
I am so SICK of these Republicans…..
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.