Supreme Court Unanimously Finds President Obama Violated Constitution In Use Of Recess Appointments

Supreme CourtPresident_Barack_ObamaThe Supreme Court has ruled in Noel Canning v. NLRB, No. 12-1115, and found that President Obama had indeed violated the constitution in his recess appointment. The decision was unanimous. I will be discussing this and the abortion case ruling at 1pm with Wolf Blitzer on CNN.

The unanimous decision was academically gratifying because I was the lead witness in the Judiciary Committee hearing on the appointments. Roughly two years 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. As someone who previously testified and written that the appointments were flagrantly unconstitutional, I received a great deal of push back. I was highly critical of the work of the Office of Legal Counsel in my testimony and my writings, which advised Obama that he had this authority. 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).It was a disappointing piece of work by an office that used to be independent and highly respected for its analysis. For prior columns, click here and here and here and here.

The decision is an important victory for the separation of powers. It will also further magnify the growing controversy over President Obama’s unilateral actions in various areas — part of his pledge to circumvention Congress to get things done. I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. Obama has repeatedly suspended provisions of the health care law and made unilateral changes that were previously rejected by Congress. He has also moved hundreds of millions from one part of the Act to other parts without congressional approval. Now, his administration is reportedly changing key provisions of the ACA to potentially make billions of dollars available to the insurance industry in a move that was never debated, let alone approved, by the legislative branch. I ran another column this month listing such incidents of executive over-reach that ideally would have included this potentially huge commitment under Obama’s claimed discretionary authority.

The Court finally defended the lines of separation in one of these disputes. The Court specifically rules out the type of “going it alone” approach of the President in the use of recess appointments and other Executive powers:

Regardless, the Recess Appointments Clause is not designed to overcome serious institutional friction. It simply provides a subsidiary method for appointing officials when the Senate is away during a recess. Here, as in other contexts, friction between the branches is an inevitable consequence of our constitutional structure. See Myers, 272 U. S., at 293 (Brandeis, J., dissenting). That structure foresees resolution not only through judicial interpretation and compromise among the branches but also by the ballot box.

Here is the opinion: Canning

188 thoughts on “Supreme Court Unanimously Finds President Obama Violated Constitution In Use Of Recess Appointments”

  1. J. Brian Harris, Ph.D., P.E.

    What is your perception of the phrases, “economy of words” and “the fog factor?”

    Nothing personal but I fell asleep about 10 words into your post.

    You’re like the SCOTUS. If you were paid $10M to express your ideas in, oh let’s say, 5 or 10 sentences, maybe a quarter of a page, could you do it?

    It’s like the SCOTUS. Everything was written for them in 1789 and 1791 but they write and write and write and write and write; even though the only thing they have to say is, “Yep it comports well and precisely with the Constitution” or “Nope, it don’t.”

  2. History rewrites itself. Bolton was being kicked around the senate and his confirmation was blocked. Bush back doored it.

  3. John Boltons appointment was block. Now realistically what is that much difference here? I am against them because they are used for political maneuvering.

    But for favors owed to Kerry, he would never have been selected. First they had to derail the rice nomination.

    1. Bolton was appt. during an actual recess. Obama’s claim was that Congress was in recess, but Congress was still meeting and claimed it was not in recess for the NLRB appts.

  4. Ok, Obama did it, does this speak about other appointments made by other presidents? Can’t have it both ways unless you pack the court. Oh yes, the bushes did just that.

    1. Keebler – they can make recess appt, there is no issue with that. Congress was not in recess, they were technically in session to stop recess appts. This is a special case.

  5. Jill – “SMM, You just said “a fair number of them”. I said “not all”. We are then on complete agreement regarding members of the tea party not all being racists.”

    True enough as this is also true, not all liberals are racists.

  6. There is very little that I can ethically and/or morally put forth here on this Turley blog thread; for I am constrained by my grasp of the Code of Ethics of the National Society of Professional Engineers, of which I am a member.

    What I find constrains me notably more than anything else, as I can fathom it, is an aspect of the properties of symbolic communication, symbolic communication that includes, but is not limited to, using supposedly English language words in sentences and paragraphs and their ilk, as in this writing.

    I expect to, but seek not to, be seriously misunderstood, said misunderstandings being intrinsic to the form and function of English language symbolic communication.

    The issue I find raised by Obama’s “recess appointments” and their being deemed, after the fact, unconstitutional by the U.S. Supreme Court is, for me, the result of, and the cause of a foundational enigma in the philosophy of science, that enigma being the philosophy of the science of the philosophy of authority.

    What is the nature of authority, including, but not limited to, the nature of social authority as a function of personal authority and the nature of personal authority as a function of social authority?

    Is actual authority subjective or (meaning, inclusive-or) objective, and, if actual authority is objective, how will persons who believe in personal authority find ways to object to the notion of objective authority, for, surely, objective authority contains personal authority as a proper subset?

    Suppose (are not all court judgements hypothetical hypotheses subject to objective refutation when such objective refutation has become practicable?) that supposing is a useful approach to solving intractable problems…

    Given that suppositions are supposedly useful in situations in which supposing is as good as it ever actually gets, I entreat whosoever reads this (if anyone bothers to read it) to follow the suppositions which supposedly follow this word sequence, the better to learn whether something can be learned thereby…

    Let the supposing begin:

    Suppose that President Obama found himself, in the role of President of the United States of America, in a moral and ethical constitutional predicament for which no resolution was anywhere evident.

    Suppose that President Obama experienced that predicament as the constitution requiring that which the constitution prohibited his doing, such that, whatever he did, he could, after the fact, be faulted for violating his oath of office.

    Suppose that President Obama, as a constitutional scholar, recognized, if only unconsciously, that he was entrained in a predicament for which the constitution, as previously understood, portended no possible remedy, except violating the constitution in one way or another.

    Suppose that President Obama, as a constitutional scholar whose declarative brain functions were conscious and whose procedural brain functions were unconscious.

    Suppose that President Obama’s conscious brain functions were unable to direct him toward any kind of resolution of the constitutional predicament, and, therefore, his unconscious procedural brain functions led him to make what he sincerely, no matter to what extent mistakenly, believed was his only viable option, to act as best he could and, if necessary, stir up a constitutional puzzlement, or, perhaps, even a constitutional crisis.

    Suppose: What options did President Obama actually have if, as I am prepared to wildly conjecture, he found himself in a double-bind trap, the only remedy he could find for which was to violate the constitution in one way or another, because the constitution required, as his procedural brain was able to understand, what it prohibited.

    Suppose, using what may be mangled (American) football parlance, Obama found his only option was to punt.

    Suppose that, in punting, President Obama had no access to any clear sense of direction, and, having no clear sense of direction because of being in a double-bind, punted blindly, with no accurate way to guess which way the goal posts were, or whether his punt, if successful, would end up winning the game for his supposed opponents.

    Suppose: What was President Obama to do, if, as is here supposed, he found himself in a predicament for which nothing in his prior life experience had prepared him to do other than the equivalent of a randomly chaotic punt, except what he may have done for want of a practicable alternative, to wit, a chaotically random form of American-football-punt-analogy?

    Suppose those who call the plays in the life game of football after the game is over are in the same sort of predicament as has here been supposed that President Obama was?

    Suppose that hindsight, folk tradition notwithstanding, which holds that hindsight is of 20-20 vision, is actually of absolute blindness to the biological (hence, neurological, hence neural-network based) process of learning, because humans have yet to learn to understand how learning actually works.

    Suppose, as I wrote many years ago, it is actually true, in a scientific sense, that:
    Second-guessing any newborn child makes the gift of life defiled.

    Suppose, in the sense of the Nyquist sampling criterion, that the whole universe of universes exists for one unit of Planck time, ceases to exist for one unit of Planck time, and is created anew, slightly changed, in the next unit of Planck time?

    Suppose: Were that supposition true (how could ti be measured?)j, surely the whole universe of universes is new born every two units of Planck time, and we are constantly being newborn, that being the process whereby change can happen in a changeless universe of universes.

    Suppose what has here been written is of a unified field theory, or theory of everything, which actually includes everything?

    Suppose “life” and “learning” are two words for one phenomenon, the phenomenon of the process of existence?

  7. Jill, NOW are you getting my point about cultists? They are sad and angry. Under normal circumstances engaging cultists is not advisable. But, w/ their cult leader imploding, they are out of control.

  8. How can the Supreme Court find that Obama violated the Constitution in his use of recess appointments and not find that Obama violated the Constitution when he claimed eligibility for the office while having a father that was a citizen of a foreign country.

    The Founders understood that a natural born citizen had two parents and that they were citizens. That was normal, common, typical, traditional and customary. It was UNDERSTOOD. The Founders had no idea that their words would be deliberately spun and mis- “interpreted” one day.

    The highest office had the highest requirements.

    Undeniably, the American Founders rejected the British legal system as they rejected British rule.

    The most cursory investigation into the origin of the phrase, natural born citizen, would inexorably lead to the Law of Nations and to the writings of the Founders on the subject of the imperative of precluding foreign allegiances in the presidency.

    The Law of Nations’ early editions were in French. French was the language of Britain until the 11tth century. The British upper class spoke French. English was spoken by the lower classes. British law was conducted in French until the mid 18th century. George Washington, among others, spoke French. The author of the Law of Nations, Vattel, was a French-speaking Swiss.

    The legal text of the era, the Law of Nations, which Franklin said the Founders “pounced on” as the legal reference, required two parents for natural born citizenship and clarified that inheritance, rank, property, citizenship, social status, etc. flowed from the father, not the mother.

    The Founders wrote that “foreign allegiances” had to be precluded with extreme prejudice from the office of president. It is impossible to avoid “foreign allegiances” in the presidency by having the son of a foreign citizen hold the office.

    Every presidential candidate, save one who lied, followed the natural born citizen requirement and had two parents that were citizens.

    How the hell did the Supreme Court, Your Highness, Your Eminence, My Lord, Your Excellency, Your Magnificence, Your Honour, Your Worship, Your Majesty, Your Illustriousness, et. al.; how the hell did the Supreme Court decide, by deliberation, omission and negligence, that the son of a foreign citizen was eligible to be a candidate for the office of president?

    Through a grand act of biased, subjective and ideological omission. The SCOTUS served its political allies and ideological benefactors through inaction, in conjunction with the contemporary Speaker of the House, Nancy Pelosi.

    The SCOTUS through lower courts rejected cases on eligibility.

    The SCOTUS demonstrated its zeal and “ambition” and violated the Constitution by exceeding the boundaries of its authority and attempting to usurp the power of the legislative branch and by “legislating from the bench.”

    The SCOTUS is the singular American failure.

  9. There is a cancer growing on the Presidency.

    The President is deliberately and wilfully perpetrating a “serial violation” of the separation of powers.

    Yet another article of impeachment.

  10. The law was so formulated that without a chairman and a quorum the agency could not legally function.Congress ,through the filibuster,made it impossible for these to be selected.When congress went on a “holiday”. arrangements were made for a pro forma session to be held at intervals of 3 days.At these pro forma sessions no legislation was to be considered by agreement.At the pro forma sessions the format was to call the meeting to order, hold the meeting open for a few minutes at most ,and to adjourn.Thus, the law could not be enforced; the people who would be harmed in the absence of enforcement of the law were unjustly left to suffer.To me this scenario ADDS UP TO A FARCE,SOMETHING I THOUGHT THE SENATE IN THE 1904 DELIBERATIONS ABOUT INTERIM ” PERIODS’ HAD RULED OUT AS A LEGITIMATE KIND OF ”SESSION.” BUT, IN THE MOST BASIC SENSE ,i DO NOT BELIEVE THAT THE CONSTITUTION INTENDED THAT SUCH OBSTRUCTION OF THE IMPLEMENTATIONS OF LAWS WAS TO BE TREATED AS A LEGITIMATE WAY OF OPERATING. THE GOAL OF PREVENTING THE PRESIDENT FROM FULFILLING HIS OBLIGATION TO IMPLEMENT THE LAW IS SELF-EVIDENT. THAT IS SABOTAGE ,NOT A TYPE OF POLITICAL MANEUVER.

    1. Binyamin – the court has held that Congress can set its own rules as long as they conform to the Constitution. What Presidents had been doing was waiting out a Congressional session, waiting for them to go on vacation and then make appointments. This process stopped the President from doing that.

  11. Partisan politics… American style… Can be summed up easily:
    “It never is (fill in blank) when the President is from my Party.”

  12. Annie: “Wrong Bob, PRECEDENT is of vast importance, as a lawyer you should know that.”

    Wrong Annie.

    Stare decisis: Latin for “to stand by things decided.” Stare decisis is essentially the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued.

    Bush getting away with crimes is not PRECEDENT because why?

    Because there is no DECISION for you to reference.

    Therefore, your continual whining about Bush whenever people discuss the crimes of Obama remains IRRELEVANT.

  13. Wow. It took all the way to 4:05pm for the race card to be played on this one.

  14. Annie, Also, when you get back, please let me where I have made a false claim concerning you. I will retract that claim if you will please show it to me.

  15. Annie, on the contrary, at each point I specifically asked you to show me where I had engaged in one behavior or another that you said I had done.

    I then said I would address your concerns and I did so. How does being willing to engage with you by asking you a question and providing answers show I don’t like being challenged?

    You need to show how this means I don’t like being challenged.

  16. There is no rule which says that we must stick up for our principals. Grade school principal was fine. Junior high principal ok. High School principal was a Pal to himself. Total jerk. Y’all can stand up for your principals if you want to but I see not relevance to doing so on these topics here on the blog. We had some jerk, first name Merlin for dog sake, who needed to be stood up and shot with all the BB guns he confiscated.

  17. SMM, You just said “a fair number of them”. I said “not all”. We are then on complete agreement regarding members of the tea party not all being racists.

  18. Jill, you don’t like it when someone challenges you, do you? Sorry but it’s all part of debating. You made false claims regarding my stance, do you not see what you’ve done here? Now I must go.

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