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. 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 ?????,

  2. NLRB ‘respectfully disagrees’ with ruling
    By DONOVAN SLACK |
    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.”

  3. “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

  4. “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

  5. 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.”

    http://dyn.politico.com/printstory.cfm?uuid=CAF693CB-DBCB-4F35-8430-BEC7F2DB682F

    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)

  6. @ 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.

  7. “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.

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

    Elaine,

    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.”

    Gene,

    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.”

    ID707,

    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.”

    Braun,

    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.

  9. 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

    http://www.rollingstone.com/politics/blogs/taibblog/choice-of-mary-jo-white-to-head-sec-puts-fox-in-charge-of-hen-house-20130125

    Excerpt:

    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.”

    http://youtu.be/O3ZOKDmorj0

  10. 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.

  11. 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.

  12. 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.

  13. 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.
    🙂

  14. 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.

  15. “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.

  16. 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.

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