Supreme Court Set To Review Obama Recess Appointments

The U.S. Supreme Court
The U.S. Supreme Court

While the rulings in Fisher and Windsor justifiably garnered the most attention this week, it is important to note an important but little discussed decision to accept a case. President_Barack_ObamaI have previously testified and written about President Barack Obama’s use of recess appointments, which I viewed as flagrantly unconstitutional. Recently, the D.C. Circuit agreed with that view and found that the Obama Administration had violated the recess appointment powers. Then a second appellate court has joined that view, the United States Court of Appeals for the Third Circuit. I have two law review articles coming out on these appointments and more broadly the abuse of recess appointment powers in modern presidencies. See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review ___ (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review ___ (2013). The case accepted for review is Noel Canning v. NLRB, No. 12-1115 (D.C. Cir. 2013).


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.

In a 2-1 panel decision, the Third Circuit is different in some respects from the earlier D.C. Circuit opinion in Noel Canning v. NLRB. It was narrower in rejecting “intrasession” appointments — recesses during a given session of Congress. However, it did not address pre-existing recesses or contain the broader historical analysis of the D.C. Circuit. It also rejects the clarity in the language of the Clause: “In short, the natural meaning of recess does not help us decide between intersession breaks and intrasession breaks of a fixed duration, but the relevant context does undermine the Board‘s current position.”

The opinion was written by Judge D. Brooks Smith and the dissent came from Judge Joseph. A Greenaway Jr. Greenaway objects that “The Majority attempts to displace the absurdity of its holding by showing that my standard also yields absurd results.”

He adds:

An empty office is an empty office. It makes no sense that the Framers would have differentiated between intrasession and intersession recesses in effectuating the purpose of the Recess Appointments Clause. See Evans, 387 F.3d at 1226 (“The purpose of the Clause is no less satisfied during an intrasession recess than during a recess of potentially even shorter duration that comes as an intersession break.”). The atrophy of agencies and other offices caused by the Senate‟s absence did not then, and does not now, depend on whether the Senate is unavailable due to an intersession recess or intrasession recess — all that matters is the length of time that the Senate is away from its usual business, unable to provide advice and consent, while vacancies persist.

Both opinions are worthy of reading and present compelling arguments, though I obviously agree with the majority. My own analysis goes further than both the D.C. Circuit and the Third Circuit.

The Supreme Court stepped into an important constitutional dispute Monday between President Obama and congressional Republicans over the chief executive’s power to make recess appointments.

The justices said they will review a federal appeals court ruling that found Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board.
The high court case is the latest chapter in the partisan political wrangling between GOP lawmakers and Obama over appointments to the labor board and the Consumer Financial Protection Bureau. Republicans want to rein in both agencies’ powers.

The Constitution gives the president the power to make temporary appointments to fill positions that otherwise require confirmation by the Senate, but only when the Senate is in recess.

At issue for the Supreme Court: What constitutes a congressional recess and does it matter when a vacancy occurs?
George Washington was the first president to make a recess appointment and Obama’s predecessors back to Ronald Reagan made significantly more such appointments than has Obama. On three earlier occasions, federal appeals courts upheld the appointments.

But the nature of the president’s actions, during brief Senate breaks that Congress explicitly said were not formal recesses, is driving the current legal controversy.

The case stems from Obama’s decision to fill the three NLRB vacancies on Jan. 4, 2012, with Congress on an extended holiday break. At the same time, however, the Senate held brief, pro forma sessions every few days as part of the Republicans’ explicit strategy of keeping Obama from filling vacancies through recess appointments. The president also used a recess appointment to install Richard Cordray as head of the financial protection agency, which the GOP had blocked for a year and a half.

Businesses and trade groups quickly went to court to challenge decisions made by the NLRB. Noel Canning, a Washington state bottling company, claimed an NLRB decision against it was not valid because the board members were not properly appointed and that the board did not have enough members to do business without the improperly appointed officials.

In January, the U.S. Court of Appeals for the D.C. Circuit agreed in a sweeping ruling. A panel composed of three Republican appointees said that the only congressional break that counts as a recess is the one that occurs between formal year-long sessions of Congress. Two of the three judges also said that only positions that come open during a congressional recess can be filled through a recess appointment. The court did not address the issue of how short a break can count as a recess.

If it stands, the ruling could invalidate hundreds of board decisions, and call into question the legitimacy of regulations issued by the Consumer Financial Protection Bureau, many of which affect the mortgage industry.
The NLRB also would effectively be shut down as a ruling against the administration would leave the board with only one member, and it needs three to conduct business.

Obama used the recess appointment to install Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the labor board, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.

The parties’ roles were reversed when a Republican President George W. Bush was in the White House and Democrats controlled the Senate in the final two years of Bush’s presidency. Then, Senate Majority Leader Harry Reid employed the same tactic of convening the Senate every few days to keep Bush from filling vacancies through recess appointments. Unlike Obama, Bush did not press the issue.

Obama has made relatively few recess appointments, 32 in his four-plus years in office, according to the Congressional Research Service. Bush made 171 such appointments and President Bill Clinton filled 139 posts that way in their eight years in office, the research service said.

Since the Noel Canning ruling, a second appeals court also has weighed in against the administration. The 3rd U.S. Circuit Court of Appeals in Philadelphia said in a 2-1 decision that recess appointments can be made only between sessions of the Senate, not any time the Senate is away on a break. That case dealt with an earlier Obama appointee to the NLRB, whose nomination was blocked by the Senate.

Canning could represent a long overdue opportunity for the Court to alter the trend toward judicial avoidance in such disputes — a trend interrupted by the D.C. and Third Circuit decisions.

54 thoughts on “Supreme Court Set To Review Obama Recess Appointments”

  1. Here is another take on the Voting Rights case from Huffington Post.

    John Roberts Shows Cold-Blooded Calculation In His Supreme Court Rulings

    Howard Fineman

    Editorial director, Huffington Post Media Group

    The shrewdest, most manipulative and radical politician in this city isn’t the president or a member of Congress. He’s the chief justice of the United States Supreme Court, John G. Roberts Jr. Roberts assured the nation during his 2005 confirmation hearing that he would be an umpire of constitutional law, but instead he has become the cleanup hitter, manager and team owner. In a now familiar two-step of jurisprudence, the Roberts Court on Wednesday tactically ceded ground it did not regard as crucial — this time, on two gay rights cases. But politically, these tolerant rulings on the country’s social fabric deflect attention from the Roberts Court’s deeper goal: to remove the federal government as an impediment to corporate, state and local power.

  2. I read the Turley testimony in Congress as he posted above. Folks: look at the Recess Appointments Clause, its not Sinter Klaus. The wording is quite simple:

    Turley Dog:
    “The most obvious place to start (and ideally end) constitutional analysis is with the text of the Constitution. Article II, Section 2, cl. 3 of the U.S. Constitution states:
    The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

    So, what is wrong with the President filling such vacancies. What is Wrong folks with Congress sitting on a nomination for more than a year? Congress is lame in this regard. Obama has not defiled the Constitution and if anything he is lame for not making more recess appointments and sooner. That is what is wrong.

    But Turley is ignoring the recent Supreme Court case in Shelby County v. Holder. Voting Rights Act struck down! Y’all don’t give a rats ass because you love the Southern Strategy. Right Turley?

  3. Recess Appointments. If its a judge then let Congress dither for 300 days. Then make the appointment., If it is any Executive position then don’t let Congress dither for more than six months and certainly less if the job is important to the nation and security. Flagrant violation of the Constitution? Yeah? What provision? BS.

  4. Recess Appointments — Are Not Flagrantly Unconstitutional. As a matter of fact there is some give and take between the Executive and Congress which not only permits Recess Appointments, but requires them You see, Congress has it in its power to confirm or deny an appointment. Time is of the essence. When they delay, a President is obligated to fill the job. Not just obligated in some business needs to be done sort of way but obligated because Congress should not play games. Congress plays games with appointments. The Executive has to set up a government poste haste and not waste time waiting for some Senate Committee to have a hearing and then sit on a nomination for 400 days. Obama is too slow and needs to make recess appointments poste haste. Or hasty. Where do you get off Turley saying something like this is “flagrantly unconstitutional”? If anything the failure to made recess appointments is a lack and failure of Executive Duty. What you ought to be thinking about is the Supreme Court’s flagrantly unconstitutional decision in Shelby County. Congress has no power to re affirm the Act? What is wrong here? Dredd Scott, Shelley v. Kraemer, all sorts of bad cases come to mind but Shelby County is right up there with Dredd. Flagrant! The President is shirking his duty by letting Congress dick him around on appointments. 400 days? JT must rethink this issue.

  5. WordPress is messing with me. I tried this comment several times. I hope it does not repeat:

    George Will • georgewill@washpost.com

    0

    E.J. Dionne: The third political branch

    Conservatives on the court tilt the playing field toward their own side. Read more

    Key Supreme Court decisions

    Same-sex marriage • The Supreme Court struck down on Wednesday a provision of a federal law denying federal benefits to married gay couples an… Read more

    High court voids key part of Voting Rights Act

    The decision negates the advance approval requirement that has been used, mainly in the South, to open up polling places to minority voters. Read more

    Editorial: The Supreme Court’s giant leap backward on voting rights

    Precisely a year ago, as the nation awaited the Supreme Court’s ruling in the challenge to the Affordable Care Act, speculation centered on ho… Read more

    “But history did not end in 1965.”

    — Chief Justice John Roberts on Tuesday

    Progressives resent progress when it renders anachronistic once-valid reasons for enlarging the federal government’s supervisory and coercive powers. Hence they regret Tuesday’s Supreme Court ruling that progress has rendered Section 4 of the 1965 Voting Rights Act unconstitutional.

    This section stipulates the formula by which nine states and some jurisdictions in others are brought under Section 5, which requires them to get federal permission — “preclearance” — for even the most minor changes in voting procedures. The 15th Amendment empowers Congress to enforce with “appropriate legislation” the right to vote. Sections 4 and 5 were appropriate 48 years ago, when the preclearance provisions were enacted for five years. They have been extended four times, most recently in 2006 for 25 years.

    The VRA is the noblest legislation in American history, more transformative than the 1862 Homestead Act, the 1862 Morrill Act (land-grant colleges) or the 1944 GI Bill of Rights. But extraordinary laws that once were constitutional, in spite of being discordant with the nation’s constitutional architecture, can become unconstitutional when facts that made the law appropriate change. The most recent data, such as registration and voting rates, on which Section 4 is based, are from 1972. The data would have been 59 years old when the most recent extension would have expired in 2031. Tuesday’s decision prevents this absurdity that Congress embraced.

    In 2009, in a case in which the court chose not to rule on the continuing constitutionality of the VRA’s formula, the court — Chief Justice Roberts writing for the majority — clearly challenged Congress to update the VRA because it “imposes current burdens and must be justified by current needs.” On Tuesday, Roberts tersely said Section 4 is “based on decades-old data and eradicated practices.”

    The 2006 extension was passed by votes of 390-33 and 98-0 in the House and Senate, respectively. Justice Antonin Scalia suggested during February’s oral argument that these numbers indicated not conviction based on reflection about continuing necessities but rather the reluctance of risk-averse legislators to vote against something with the “wonderful” name Voting Rights Act. Scalia should have cited the actual name of the 2006 extension: the “Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act.” It is anti-constitutional to argue that it would have been admirable “restraint” for the court to respect Congress’ decision to extend all of the VRA — whether from conviction, cowardice or sloth — regardless of what the court has called the act’s “substantial federalism costs.”

    Tuesday’s decision came nine years after a presidential election in which most of the states where higher portions of whites than blacks were registered were in states (e.g., Massachusetts) not covered by Section 5. The decision came eight months after a presidential election in which African- Americans voted at a higher rate than whites. It came when in a majority of the nine states covered by the preclearance requirements, blacks are registered at a higher rate than whites. It came when Mississippi has more black elected officials — not more per capita; more — than any other state.

    The Supreme Court’s 1896 Plessy v. Ferguson decision affirming the constitutionality of racial segregation in separate but supposedly equal public accommodations rejected the idea that such segregation imposed a “badge of inferiority.” But of course it did, as the court acknowledged in its 1954 school desegregation ruling. And during oral argument in February, Justice Stephen Breyer suggested the VRA remains constitutional because it acknowledges the South’s continuing moral inferiority. He likened Southern racism to a dormant but still dangerous disease:

    “Imagine a state has a plant disease, and in 1965 you can recognize the presence of that disease. … Now, it’s evolved. … But we know one thing: The disease is still there in the state.”

    Breyer’s insinuation was that we “know” the covered jurisdictions remain uniquely diseased, or potentially so. Tuesday, Roberts’ response was that (in words from a prior court ruling) “the constitutional equality of the states is essential to the harmonious operation of the scheme upon which the Republic was organized.”

    Section 5 is now a nullity because it lacks force absent a Section 4 formula for identifying covered jurisdictions, and today’s Congress will properly refuse to enact another stigmatizing formula. On Tuesday, however, the court paid the VRA the highest possible tribute by saying the act’s key provision is no longer constitutional because the act has changed pertinent facts that once made it so.

    Copyright the Washington Post

    Barkindog here: I have tried to post this a few times. I hope it is not repeated. Maybe I am being censored.

  6. George Will • georgewill@washpost.com

    0

    E.J. Dionne: The third political branch

    Conservatives on the court tilt the playing field toward their own side. Read more

    Key Supreme Court decisions

    Same-sex marriage • The Supreme Court struck down on Wednesday a provision of a federal law denying federal benefits to married gay couples an… Read more

    High court voids key part of Voting Rights Act

    The decision negates the advance approval requirement that has been used, mainly in the South, to open up polling places to minority voters. Read more

    Editorial: The Supreme Court’s giant leap backward on voting rights

    Precisely a year ago, as the nation awaited the Supreme Court’s ruling in the challenge to the Affordable Care Act, speculation centered on ho… Read more

    “But history did not end in 1965.”

    — Chief Justice John Roberts on Tuesday

    Progressives resent progress when it renders anachronistic once-valid reasons for enlarging the federal government’s supervisory and coercive powers. Hence they regret Tuesday’s Supreme Court ruling that progress has rendered Section 4 of the 1965 Voting Rights Act unconstitutional.

    This section stipulates the formula by which nine states and some jurisdictions in others are brought under Section 5, which requires them to get federal permission — “preclearance” — for even the most minor changes in voting procedures. The 15th Amendment empowers Congress to enforce with “appropriate legislation” the right to vote. Sections 4 and 5 were appropriate 48 years ago, when the preclearance provisions were enacted for five years. They have been extended four times, most recently in 2006 for 25 years.

    The VRA is the noblest legislation in American history, more transformative than the 1862 Homestead Act, the 1862 Morrill Act (land-grant colleges) or the 1944 GI Bill of Rights. But extraordinary laws that once were constitutional, in spite of being discordant with the nation’s constitutional architecture, can become unconstitutional when facts that made the law appropriate change. The most recent data, such as registration and voting rates, on which Section 4 is based, are from 1972. The data would have been 59 years old when the most recent extension would have expired in 2031. Tuesday’s decision prevents this absurdity that Congress embraced.

    In 2009, in a case in which the court chose not to rule on the continuing constitutionality of the VRA’s formula, the court — Chief Justice Roberts writing for the majority — clearly challenged Congress to update the VRA because it “imposes current burdens and must be justified by current needs.” On Tuesday, Roberts tersely said Section 4 is “based on decades-old data and eradicated practices.”

    The 2006 extension was passed by votes of 390-33 and 98-0 in the House and Senate, respectively. Justice Antonin Scalia suggested during February’s oral argument that these numbers indicated not conviction based on reflection about continuing necessities but rather the reluctance of risk-averse legislators to vote against something with the “wonderful” name Voting Rights Act. Scalia should have cited the actual name of the 2006 extension: the “Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act.” It is anti-constitutional to argue that it would have been admirable “restraint” for the court to respect Congress’ decision to extend all of the VRA — whether from conviction, cowardice or sloth — regardless of what the court has called the act’s “substantial federalism costs.”

    Tuesday’s decision came nine years after a presidential election in which most of the states where higher portions of whites than blacks were registered were in states (e.g., Massachusetts) not covered by Section 5. The decision came eight months after a presidential election in which African- Americans voted at a higher rate than whites. It came when in a majority of the nine states covered by the preclearance requirements, blacks are registered at a higher rate than whites. It came when Mississippi has more black elected officials — not more per capita; more — than any other state.

    The Supreme Court’s 1896 Plessy v. Ferguson decision affirming the constitutionality of racial segregation in separate but supposedly equal public accommodations rejected the idea that such segregation imposed a “badge of inferiority.” But of course it did, as the court acknowledged in its 1954 school desegregation ruling. And during oral argument in February, Justice Stephen Breyer suggested the VRA remains constitutional because it acknowledges the South’s continuing moral inferiority. He likened Southern racism to a dormant but still dangerous disease:

    “Imagine a state has a plant disease, and in 1965 you can recognize the presence of that disease. … Now, it’s evolved. … But we know one thing: The disease is still there in the state.”

    Breyer’s insinuation was that we “know” the covered jurisdictions remain uniquely diseased, or potentially so. Tuesday, Roberts’ response was that (in words from a prior court ruling) “the constitutional equality of the states is essential to the harmonious operation of the scheme upon which the Republic was organized.”

    Section 5 is now a nullity because it lacks force absent a Section 4 formula for identifying covered jurisdictions, and today’s Congress will properly refuse to enact another stigmatizing formula. On Tuesday, however, the court paid the VRA the highest possible tribute by saying the act’s key provision is no longer constitutional because the act has changed pertinent facts that once made it so.

    Copyright the Washington Post

  7. Here is the George Will article from the Washington Post on the Voting Rights Act–case:

    George Will • georgewill@washpost.com

    0

    E.J. Dionne: The third political branch

    Conservatives on the court tilt the playing field toward their own side. Read more

    Key Supreme Court decisions

    Same-sex marriage • The Supreme Court struck down on Wednesday a provision of a federal law denying federal benefits to married gay couples an… Read more

    High court voids key part of Voting Rights Act

    The decision negates the advance approval requirement that has been used, mainly in the South, to open up polling places to minority voters. Read more

    Editorial: The Supreme Court’s giant leap backward on voting rights

    Precisely a year ago, as the nation awaited the Supreme Court’s ruling in the challenge to the Affordable Care Act, speculation centered on ho… Read more

    “But history did not end in 1965.”

    — Chief Justice John Roberts on Tuesday

    Progressives resent progress when it renders anachronistic once-valid reasons for enlarging the federal government’s supervisory and coercive powers. Hence they regret Tuesday’s Supreme Court ruling that progress has rendered Section 4 of the 1965 Voting Rights Act unconstitutional.

    This section stipulates the formula by which nine states and some jurisdictions in others are brought under Section 5, which requires them to get federal permission — “preclearance” — for even the most minor changes in voting procedures. The 15th Amendment empowers Congress to enforce with “appropriate legislation” the right to vote. Sections 4 and 5 were appropriate 48 years ago, when the preclearance provisions were enacted for five years. They have been extended four times, most recently in 2006 for 25 years.

    The VRA is the noblest legislation in American history, more transformative than the 1862 Homestead Act, the 1862 Morrill Act (land-grant colleges) or the 1944 GI Bill of Rights. But extraordinary laws that once were constitutional, in spite of being discordant with the nation’s constitutional architecture, can become unconstitutional when facts that made the law appropriate change. The most recent data, such as registration and voting rates, on which Section 4 is based, are from 1972. The data would have been 59 years old when the most recent extension would have expired in 2031. Tuesday’s decision prevents this absurdity that Congress embraced.

    In 2009, in a case in which the court chose not to rule on the continuing constitutionality of the VRA’s formula, the court — Chief Justice Roberts writing for the majority — clearly challenged Congress to update the VRA because it “imposes current burdens and must be justified by current needs.” On Tuesday, Roberts tersely said Section 4 is “based on decades-old data and eradicated practices.”

    The 2006 extension was passed by votes of 390-33 and 98-0 in the House and Senate, respectively. Justice Antonin Scalia suggested during February’s oral argument that these numbers indicated not conviction based on reflection about continuing necessities but rather the reluctance of risk-averse legislators to vote against something with the “wonderful” name Voting Rights Act. Scalia should have cited the actual name of the 2006 extension: the “Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act.” It is anti-constitutional to argue that it would have been admirable “restraint” for the court to respect Congress’ decision to extend all of the VRA — whether from conviction, cowardice or sloth — regardless of what the court has called the act’s “substantial federalism costs.”

    Tuesday’s decision came nine years after a presidential election in which most of the states where higher portions of whites than blacks were registered were in states (e.g., Massachusetts) not covered by Section 5. The decision came eight months after a presidential election in which African- Americans voted at a higher rate than whites. It came when in a majority of the nine states covered by the preclearance requirements, blacks are registered at a higher rate than whites. It came when Mississippi has more black elected officials — not more per capita; more — than any other state.

    The Supreme Court’s 1896 Plessy v. Ferguson decision affirming the constitutionality of racial segregation in separate but supposedly equal public accommodations rejected the idea that such segregation imposed a “badge of inferiority.” But of course it did, as the court acknowledged in its 1954 school desegregation ruling. And during oral argument in February, Justice Stephen Breyer suggested the VRA remains constitutional because it acknowledges the South’s continuing moral inferiority. He likened Southern racism to a dormant but still dangerous disease:

    “Imagine a state has a plant disease, and in 1965 you can recognize the presence of that disease. … Now, it’s evolved. … But we know one thing: The disease is still there in the state.”

    Breyer’s insinuation was that we “know” the covered jurisdictions remain uniquely diseased, or potentially so. Tuesday, Roberts’ response was that (in words from a prior court ruling) “the constitutional equality of the states is essential to the harmonious operation of the scheme upon which the Republic was organized.”

    Section 5 is now a nullity because it lacks force absent a Section 4 formula for identifying covered jurisdictions, and today’s Congress will properly refuse to enact another stigmatizing formula. On Tuesday, however, the court paid the VRA the highest possible tribute by saying the act’s key provision is no longer constitutional because the act has changed pertinent facts that once made it so.

    Copyright the Washington Post

    I would imagine a Court which has a disease call Al’s Heimer. No memory, no sense of history, no name no blame, went in dumb come out dumb too. Call it the Roberts Court. Kind of like Dredd Scott. Plessy.

  8. Yeah, Justice Roberts don’t need to know nuthin bouth birthin babies. He is on the Court to affirm The Southern Strategy of Lee Atwater. Y’all know about that don’t ya? Blog readers?

  9. The thing about this new Dredd Scott decision in setting aside the Voting Rights Act, the Supreme Court is so arrogant about Congress not knowing nuthin bout birthin babies. Ya think that the Senator from Alabama who voted for the Acts’ extension in 2006 was not aware of How Many Bubbles Are in a Bar of ‘Soap? Next question Justice Roberts. How many bubbles in your lame brain.

  10. It is time to Occupy The Supreme Court. Dredd Scott is rolling over in his grave.

  11. Each Senator from every Southern State affected by the provisions of he Voting Rights Act voted for its extension in 2006. The vote was 98-0.

  12. I suppose that the Civil Rights Act of 1964 is now on the table at the Supreme Court.

  13. And if we can say a cuss word by putting it in Pig Latin then we have gotten around Word Press.

  14. Well itShay itchinBayDog, if we can post our concerns about the Voting Rights Act being set aside by the Nazi Supreme Court then what is the beef?

  15. Yeah recess appointments are important. Kind of like they were when Dredd Scott was decided. This is a Supreme Court law blog. It speaks for itself.

  16. The major thing about the Supreme Court decision throwing out the Voting Rights Act is the derision that the Court has for Congress.

  17. Here is part of an article from the NY Times on the Voting Rights Act case:

    By ADAM LIPTAK

    Published: June 25, 20131273 Comments

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    WASHINGTON — The Supreme Court on Tuesday effectively struck down the heart of the Voting Rights Act of 1965 by a 5-to-4 vote, freeing nine states, mostly in the South, to change their election laws without advance federal approval.

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    A Guide to the Supreme Court Decision on the Voting Rights Act
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    Related

    On Voting Case, Reaction From ‘Deeply Disappointed’ to ‘It’s About Time’ (June 26, 2013)

    The Caucus: Reaction and Analysis of the Voting Rights Decision (June 25, 2013)

    Justices Say Law Doesn’t Require Child to Be Returned to Her Indian Father (June 26, 2013)

    Related in Opinion

    Editorial: An Assault on the Voting Rights Act (June 26, 2013)

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    Drew Angerer for The New York Times

    Representative John Lewis of Georgia, center left, and Representative John Conyers Jr. of Michigan, right, at a news conference. The Voting Rights Act covered nine states, mostly in the South.

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    The court divided along ideological lines, and the two sides drew sharply different lessons from the history of the civil rights movement and the nation’s progress in rooting out racial discrimination in voting. At the core of the disagreement was whether racial minorities continued to face barriers to voting in states with a history of discrimination.

    “Our country has changed,” Chief Justice John G. Roberts Jr. wrote for the majority. “While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

    The decision will have immediate practical consequences. Texas announced shortly after the decision that a voter identification law that had been blocked would go into effect immediately, and that redistricting maps there would no longer need federal approval. Changes in voting procedures in the places that had been covered by the law, including ones concerning restrictions on early voting, will now be subject only to after-the-fact litigation.

    President Obama, whose election as the nation’s first black president was cited by critics of the law as evidence that it was no longer needed, said he was “deeply disappointed” by the ruling.

    Justice Ruth Bader Ginsburg summarized her dissent from the bench, an unusual move and a sign of deep disagreement. She cited the words of the Rev. Dr. Martin Luther King Jr. and said his legacy and the nation’s commitment to justice had been “disserved by today’s decision.”

    She said the focus of the Voting Rights Act had properly changed from “first-generation barriers to ballot access” to “second-generation barriers” like racial gerrymandering and laws requiring at-large voting in places with a sizable black minority. She said the law had been effective in thwarting such efforts.

    The law had applied to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states, including Brooklyn, Manhattan and the Bronx.

    Chief Justice Roberts wrote that Congress remained free to try to impose federal oversight on states where voting rights were at risk, but must do so based on contemporary data. But the chances that the current Congress could reach agreement on where federal oversight is required are small, most analysts say.

    Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion. Justice Ginsburg was joined in dissent by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

    The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determined which states must receive clearance from the Justice Department or a federal court in Washington before they made minor changes to voting procedures, like moving a polling place, or major ones, like redrawing electoral districts.

    Section 5, which sets out the preclearance requirement, was originally scheduled to expire in five years. Congress repeatedly extended it: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years. But it relied on data from the 1975 reauthorization to decide which states and localities were covered.

    The current coverage system, Chief Justice Roberts wrote, is “based on 40-year-old facts having no logical relationship to the present day.”

    “Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” he wrote. “It cannot simply rely on the past.”

    The decision did not strike down Section 5, but without Section 4, the later section is without significance — unless Congress passes a new bill for determining which states would be covered.

    It was hardly clear, at any rate, that the court’s conservative majority would uphold Section 5 if the question returned to the court in the unlikely event that Congress enacted a new coverage formula. In a concurrence, Justice Thomas called for striking down Section 5 immediately, saying that the majority opinion had provided the reasons and had merely left “the inevitable conclusion unstated.”

  18. ** Maggie Ringland 1, June 27, 2013 at 9:28 am

    talk about the imperial presidency, Obama has violated the Constitution so many times its not even funny, no wonder he and Putin get along so well. he was a constitutional law professor at Harvard. and I’m the Easter Bunny.
    **

    Has anyone ever heard from one of Obama’s students?

    I heard from one guy that claimed Obama came to one or two classes on Const. Law that he was in, but didn’t remember seeing him again.

    And what Constitution is Obama following? It’s surly not the US Constitution.

    Obama’s actions/policies are that of a modern Nazi.

    A new documentary is coming out now, preview interview below

    **

    On today’s show, Alex also talks with James Lane and Richard Grove about their new documentary, State of Mind: The Psychology of Control, a film delving into the abyss to expose the true science of control that has evolved over generations to keep us firmly in place so that dictators, power brokers and corporate puppeteers may profit from our ignorance and slavery. **

    http://www.infowars.com/listen

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