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. 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.

  2. 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.

  3. 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.”

  4. 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.

  5. 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.”

  6. 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.

  7. 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.

  8. Point, SWM, but, who knows, we live in strange times. He/they had the chutzpah/courage to be prominently on TV.

  9. 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.

  10. 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.

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

  12. 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.

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

  14. 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.

  15. 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.

  16. 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?

  17. 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.

  18. 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 😉

  19. 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?

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